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O.J.  DAVIES 


v/ 


»  vi 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


GIFT  OF 

James  R«  Hutter 
•i;7  Bus.  Adm. 


<r 


A  GENERAL 


TREATISE  ON  STATUTES^: 

RULES  OF  CONSTRUCTI^,  ^.r^^^C 


AND  THE  PROPER  BOUNDARIES  OF  LEGISLATION  AND 
OF  JUDICIAL  INTERPRETATION. 


By  Sir  Fortunatus  Dwareis,  Knt., 

B.   A.,   OXPOBD,  F.  B.  S.,  F.   S.  A. 


AVITII  AMERICAN  NOTES  AND  ADDITIONS, 

AND  ^^^TH 

NOTES  AND  MAXIMS  OF  CONSTITUTIONAL  AND  OF 
STATUTE  CONSTRUCTION. 


A  TREATISE   ON   CONSTITUTIONAL  LIMITATIONS  UPON  THE 
NATIONAL  AND  STATE  LEGISLATIVE  POWER; 

WrXH   A   CHAPTER   ON 

PAELIAilENTAEY  LAW  AND  P.VELIAMENTARY  PRWILEGES. 


BY  PLATT  POTTER,  LL.  D., 

ONE    OF   THE  JUSTICES   OF  THE   STJPKEME   COtTET   OF   THE 
STATE    OF   NEW   YOEK. 


••£)p«77ia  t&l  kx  quce  minimum  rdlnquit  arUirio  judicis,  optlmus  judex  qui  minimxim  sibi 
— Aphorism,  46,  Bacon's  Works,  vol.  vii,  p.  148. 


ALBANY: 
WILLIAM    GOULD    &    SON, 

LAW     BOOKSELLERS     AXD     PUBLISUEKS. 
lS7n. 


CNTK&aD  according  to  act  of  Congress,  in  the  year  one  thousand  eight  hundred  and  seventy-ona 

By  WILLIAM  GOULD  &  SONS, 

in  the  office  of  the  Librarian  of  Congress  at  Washington. 


^        / 


^s 


:^ 


rREFACE, 


The  republication  of  the  Treatise  of  "  Dwarris  on  Statutes,"  re- 
quires no  apology.  It  is  a  standard  work  of  the  highest  authority, 
acknowledged  by  all  the  courts  of  this  country,  as  well  as  in 
England.  It  was  out  of  print ;  could  not  be  suppUed  at  any  price, 
though  greatly  demanded.  No  law  library,  can  be  regarded  as 
complete,  without  it.  Indeed,  the  student,  who  desu'es  to  pos- 
sess a  fair  knowledge  of  the  jurisprudence  of  the  state  and  nation 
of  which  the  statute  law  forms  so  striking  and  material  a  portion, 
.\ill  remain  deficient  in  the  necessary  qualifications  for  an  honor- 
ble  profession,  if  found  Avanting  in  the  proper  knowledge  which 
this  work  supplies,  of  the  recognized  parts  and  divisions  of  stat- 
utes, and  of  the  different  rules  of  construction  and  interpretation 
by  which  the  different  characters  of  statutes  are  governed.  An 
applicant  for  admission  to  the  bar  of  the  state,  or  nation,  should 
be  debarred,  who  shall  have  advanced  no  further  in  the  science  of 
the  law,  than  to  suppose  the  rule  of  interpretation  of  all  statutes 
was  one  uniform  rule  ;  that  a  remedial  and  a  j)GnoJ  statute  were  to  be 
construed  alike  ;  or  who  could  not  answer  to  the  distinctions  be- 
tween, prospective  and  retrospective,  public  and  private,  enabling 
and  disabling,  enlarging  and  restraining,  affirmative  and  negative 
statutes,  and  to  the  various  other  known  divisions,  as  well  as  of 
the  particular  rules  of  construction  applicable  to  each  division ; 
md,  as  appHcable  also  to  the  various  parts  of  the  same  statute ;  to 
the  title  ;  the  preamble  ;  the  enacting  part ;  the  clauses  ;  provisos 
and  exceptions ;  and  to  the  effect  which  each  part  bears  upon 
the  whole,  and  upon  its  construction.  This  treatise  may  therefore 
be  regarded  as  elementaiy,  and  the  necessary  complement  to  the 
professional  life  of  the  lawyer. 


IV  PKEFACE. 

This  republication,  lias  preserved  all  tlie  original  text  of  its 
autlior  "vvliicli  has  application  to  the  division  and  construction  of 
statutes,  and  has  omitted  only  such  portions  of  it,  as  relate  exclu- 
sivelvto  the  institutions  of  Great  Britain,  their  origin  and  historv  ; 
the  forms  of  summoning  parliament ;  the  composition  of  that  body; 
the  degrees  of  nobility  and  the  powers  possessed  respectively  by 
each  rank  and  order  in  that  body. 

In  the  volume  here  presented,  the  text  of  Dwarris  will  be  found 
distmguished  from  that  of  the  American  author,  by  being  in  what 
is  called  solid  printed  matter  without  quotation  marks  ;  that  of  the 
Ainerican  additions,  by  being  in  open  leaded  matter. 

A  republication  of  this  work  in  America,  would  have  failed  of 
meeting  public  expectation  had  it  omitted  to  add,  to  it,  the  Amer- 
ican authority  upon  the  same  subject,  or  to  notice  such  changes 
as  our  different  theory  of  government,  and  the  advance  which 
general  legal  intelligence  has  made  necessary.  He  has  therefore 
added,  by  way  of  original  text  and  commentary,  as  well  as  by 
notes,  what  he  regards  as  the  American  law,  in  the  enactment  and 
construction  of  statutes. 

Nor  could  a  treatise  upon  American  statutes,  approach  to  any 
degree  of  practical  use  here,  without  contrasting  the  power  oi 
enacting  statutes  in  this  country  with  that  of.  the  mother  country 
whose  statutes,  as  well  as  common  law,  we  have  so  extensively 
copied  and  adopted.  To  do  this,  it  also  became  necessary  to 
show  the  source  and  extent  of  the  law  making  power  in  this 
country,  and  to  introduce  into  the  work,  the  effect  of  that  new 
feature  in  legislative  power,  not  known  in  England  ;  of  legislatures 
restrained  and  limited  in  their  powers  to  enact  laws  by  written 
constitutions,  which,  are  the  fundamental,  superior  and  controll- 
ing authority.  It  also  became  necessary  to  show  the  effect  of  laws 
passed  by  legislatures,  in  cases  where  the  legislatures  have  ex- 
ceeded the  constitutional  limits. 

The  necessary  distinction  between  statutes  enacted  by  legisla- 
tures under  restricted  constitutional  power,  and  those  which  are 
not,  seemed  to  call  for  the  American  view  of  the  statute  construc- 
tion, as  distinguished  from  tlie  English  ;  and  this  has  been  at- 
tempted in  this  work.  First,  by  a  limited  commentary  upon  the 
theory  of  American  constitutional  governments.     Second,  upon  the 


PREFACE.  V 

limitations  and  restraints  upon  the  legislative  power ;  and,  Third, 
upon  the  rights,  immunities  and  privileges  of  the  citizen,  secured  to 
him  by  these  written  constitutions,  national  and  state. 

These  are  divided  into  appropriate  chapters,  containing  the 
rules  recognized  in  American  jurisprudence,  for  the  protection,  as 
well  as  the  hmitation  of  the.constitutional-securities  of  the  citizen. 

The  hmits  of  this  work  would  not  admit  of  an  elaborate  com- 
mentary upon  the  national  constitution,  hke  that  of  Justice  Story, 
in  two  volumes  ;  nor  one  extended  enough  to  embrace  an  equally 
elaborate  treatise  upon  tlmiy-six  several  and  vaiyiug  state  constitu- 
tions, by  showing  the  disparities  between  them,  and  the  differences 
of  state  pohcy  and  jurisprudence  under  them  respectively ;  but  it  is 
beheved  that  the  work  is  comprehensive  enough,  with  the  refer- 
ences it  contains  to  judicial  decisions  and  to  standard  legal  trea- 
tises of  established  authority,  to  make  it  a  convenient  guide  to  the 
student  Avho  desires  to  extend  his  knowledge  of  constitutional  law, 
and  their  limitations ;  to  inspire  him  to  seek  the  more  elaborate 
and  profound  treatises  upon  the  same  subjects ;  and  to  present  in 
a  brief  space,  such  elementary  constitutional  principles  as  are 
common  to  all  the  state  governments,  as  well  as  to  the  national, 
iu  their  protection  to  the  citizen. 

In  domg  this,  the  author  has  endeavored,  as  a  general  rule,  to 
state  established  principles  and  adjudications,  rather  than  his  own 
opinions  of  the  law ;  and  he  has  not  omitted  to  avail  liimself  to 
some  extent,  of  the  views  of  those  whom  he  regards  as  the  ablest 
of  jm-ists,  commentators  and  authors  that  have  presented  their 
o^vTi  views  to  the  world.  To  Marshall,  Kent,  Story,  and  others, 
as  jurists  and  authors ;  and  including  Smith,  Sedgwick  and  Cooloy 
as  writers ;  to  a  greater  or  loss  extent  upon  the  same  subjects,  he 
is  indebted  for  many  of  his  views  contained  in  this  work,  wdiich, 
in  some  respects,  may  be  regarded  as  an  abridgement  of  the  more 
elaborate  treatises ;  in  other  respects,  while  he  has  ventured  to 
differ  in  some  particulars  from  those  authors,  he  has  not  done  so 
without  diffidence,  nor  without  support,  by  reference  to  the  opin- 
ions of  others,  whose  authority  he  has  cited  to  that  end.  Neither 
the  subject  of  construction  of  statutes,  nor  that  of  constitutional 
power  and  limitations,  has  yet  been  exhausted  by  what  has  been 
wTitten  thereon.     It  is  an  extended  field ;  and  each  day,  tlurough 


vi  PREFACE. 

our  courts,  new  views  of  construction,  new  rules  of  application, 
and  new  developments  of  constitutional  power,  or  of  restriction, 
are  judicially  promulgated;  so  that  new  questions  are  arising, 
winch,  if  they  do  not  absolutely  demand  new  treatises  on  the  same 
subject,  will  at  least  present  temptations  to  other  "mriters,  to  enter 
the  same  jEield. 

There  has  also  been  added  to  this  work,  a  chapter  on  parlia- 
mentary law,  including  parliamentary,  or  legislative  privileges. 
We  have  no  elementary,  or  other  treatise  upon,  or  applicable  to 
that  subject  in  this  state,  except  a  small  compilation  from  Jeffer- 
son's manual  and  from  the  practice  of  legislative  bodies,  containing 
rales  of  proceeding  in  the  legislature  as  to  the  order  and  govern- 
ment of  the  two  houses,  and  the  rights,  pri\aleges,  and  duties  of 
the  President  of  the  senate,  the  S23eaker  of  the  house,  and  to  the 
members  of  each  house  as  among  themselves,  in  the  transaction  of 
legislative  duties,  called  "  Croswell's  Manual."  As  is  claimed, 
and  admitted,  the  common  law  of  parliament,  including  the  law  of 
legislative  privilege,  in  the  state  of  New  York,  is  almost  identical 
with  that  of  England,  and  has  been,  ever  since  the  day  of  the  stat- 
ute of  13  Geo.  3,  of  which,  the  Eevised  Statutes  of  this  state  upon 
the  same  subject  are  substantially  a  transcript.  He  has  therefore 
briefly  but  carefully  compiled  from  the  most  authentic  sources,  the 
modern  Enghsh  common  law  of  the  two  houses  of  parliament,  which 
is  beheved  to  be  the  law  in  force  here  ;  so  far  as  the  same  can  be 
made  applicable  to  our  system.  To  demonstrate  that  modern  Eng- 
lish parHamentary  law  is  now  identical  wdth  that  of  this  state,  we 
have,  in  that  chapter,  shown  the  ancient,  as  well  as  the  modern, 
and  the  repudiation  of  the  former,  subsequent  to  the  day  of  the 
statutes  which  regulate  it,  and  have  cited  as  authority,  the  bold 
and  independent  adjudications  of  the  judiciary,  as  well  as  parlia- 
ment itself,  agamst  these  ancient  parliamentary  assumptions. 

If  an  apology  is  needful  for  the  imperfections  of  this  work,  it 
may  be  stated  that  the  whole  labor  has  been  performed,  in  such 
leisure  hours  during  a  period  of  less  than  two  years,  as  he  has  been 
able  to  snatch  from  most  pressing  official  duties,  and  even  those 
hours,  greatly  interrupted  by  answering  to  the  public  demands. 
He  cannot  therefore  hope  to  have  escaped  the  commission  of  errors, 
nor  to  have  avoided  defects. 


TREFACE.  ^n 

In  the  full  belief,  that  the  republicatiou  of  the  work  of  a  standard 
autlior,  will  contribute  to  the  diffusion  of  knowledge,  and  to  public 
good ;  and  in  the  hope  that  the  other  topics  discussed,  may  con- 
tribute something  to  the  same  end,  and,  that  even  fair  criticism, 
may  discover  in  the  work,  sufficient  of  practical  utility  to  justify  ita 
publication,  is  the  ardent  wish  of  the  author. 

Schenectady,  June,  1871. 


CONTENTS. 


CHAPTEB  I. 

PAGE. 
Of  statutes  in  General;  their  Definition,  Origin,  Source  of 
Authority.     History-  of  the  English  System  of  Einactment. 
Omnipotence  of  Parliament  in  that  regard.     Limitation  of 
American  Legislative  Power.         -        -        -        _        _        33 

CHAPTEPt  II. 

Of  the  General  Interpretation  of  Statutes.  Pubhc  and  Pri- 
vate Statutes.  Their  Divisions.  How  they  are  Authenti- 
cated. Power  of  Enacting  Statutes.  Legislative  Power ; 
its  Eestrictions  and  Incidents.     Who  is  to  interpret  them.        48 

CHAPTER  ni. 

Of  the  Division  of  Statutes.  Powers  of  the  dififerent  depart- 
ments of  Government  in  their  Enactment  and  Intert^reta- 
tion.    The  EngUsh  System.     The  American  System.      -        G8 

CHAPTEPt  lY. 

Of  the  Form  of  Statutes.  Their  various  parts — Title,  Pre- 
amble, Enacting  Clauses.  The  ejBfect  of  each.  Their  m- 
tent,  how  obtained.  The  effect  of  Words.  Of  their  repeal. 
Effect  of  Saving  Clauses  and  of  Provisos.         -        -        >        99 

CHAPTER  Y. 

Of  the  Qualities,  Incidents  and  General  Rules  and  Maxims 
of  Intei-pretatiou  of  Statutes.  Rules  of  Dwarris.  Rules 
and  Maxims  of  Yattel.     Rules  of  Puffendorf.     Rules  and 


X  CONTENTS. 

Maxims  of  Grotius.     Eules   of  Eutlierford.     Eules   and 
Maxims  of  Domat.     And  American  Rules.     -        -        -        121 

CHAPTER  YL 

Of  the  Exceptions  to  General  Rules  of  Constniction ;  and  the 
manner  of  pleading  and  taking  advantage  of  particular 
Statutes.  Of  the  Repeal  of  Statutes,  and  its  effect  and 
accidents.  Effect  of  Prohibitory  Statutes.  Retrospective 
Statutes,    Ex  post  facto  Laws.     Time  of  tlieh  taking  effect.  147 

CHAPTER  YII. 

Of  General,  Qualified  and  Particular  Rules  relating  to  the 
Construction  of  Statutes.  Constniction  of  Words.  Affirm- 
ative and  Permissive  Words.  Declaratory  Words.  Di- 
rectory and  Imperative  Statutes.  Affirmative  and  Nega- 
tive Statutes.  Remedial  Statutes.  How  Particular  Stat- 
utes are  to  be  construed.  What  is  Equitable  Constniction. 
Penal  Statutes.  Strict  Construction;  and  Exceptions  to 
Strict  Construction.      -        -        -        -        -        -        -        173 

CHAPTER  VIIL 

Of  Particular  Rules  of  Construction  applicable  to  distinct 
parts  of  Statutes — Title,  Preamble,  Clauses,  Provisos.  Ju- 
dicial Exposition  of  the  meaning  of  particular  Words  and 
Passages  to  be  found  in  Legislative  Acts.  Local,  Particu- 
lar and  Special  Acts.     Statute  Powers  and  Remedies.  -        2G5 

CHAPTER  IX. 

Of  the  Boundaries  of  Legislation,  and  of  Judicial  Interpreta- 
tion sought  to  be  ascertained.  The  instances  of  the  exercise 
of  this  branch  of  Judicature  in  the  English  and  Erench 
Courts  re\icwed.  Of  Legitimate  Construction,  and  Inter- 
pretative Legislation  irrespective  of  Constitutional  Restric- 
tions. History  of  Jurisprudence;  its  Power;  distinguished 
from  Legislation.     History  of  the  Code  Napoleon.      Dis- 


CONTENTS.  XI 

cours   Preliiiiiuaire.      French  JuiispruJonce.      American 
Theory.     English,  French  and  American  Jurisprudence.        29G 

CHAPTER  X. 

Of  ^bnericau  Constitutional  Power.  The  DLstiibution  of  the 
Sovereign  Power  into  three  Dei^artments.  The  Indepen- 
dence of  each  Department  of  the  others.  The  Functions 
of  each  Department  in  the  Administration  of  the  Law. 
What  is  Sovereignity.  Where  it  resides  in  American 
Constitutional  Governments.  Of  Constitutional  and  Statute 
Powers.  Powers  of  the  several  Departments.  Powers  of 
the  Government,  and  the  Eights  of  the  Citizen.  The  hmi- 
tations  to  Constitutional  Power.  Who  determines  tliis 
Power. -        .        _        .        330 

CHAPTER  XL 

Of  the  Limitation  of  Constitutional  Power  in  taldug  Private 
Property  for  Public  LTses,  under  the  PJght  of  Eminent  Do- 
main.   -___        372 

CHAPTER  Xn. 

Of  the  Constitutional  Authority  to  take  Private  Property  for 
Pubhc  Purposes  under  the  Taxing  Power.     -        -        -        402 

CHAPTER  XIII.     , 

Of  the  'Constitutional  Protection,  that  Life,  Liberty  and  Prop- 
erty be  not  taken  ■without  Due  Process  of  Law.  What  is 
included  in  Due  Process  of  Law.  -        _        _        _        428 

CH^iPTER  XIV. 

Of  the  Police  Power  of  the  Govermncnt  under  State  Consti- 
tutions, by  which  Piivate  Property  may  be  taken  for  the 
benefit  of  others.  From  what  source  this  power  is  derived. 
By  whom  this  power  may  be  regulated.  And  what  it  in- 
cludes, and  what  is  not  included.  _        -        _        _        444 


ni  CONTENTS. 

CHAPTER  XY. 

Of  Constitutional  Protection  to  Personal  Property.  Due 
Process  of  Law.  Statute  Eemedies.  Bankrupt  Laws.  Im- 
pairing Obligation  of  Contracts.  _         _         _         _         4.QQ 

CHAPTER  XVL 

Of  the  Constitutional  Protections  to  Personal  Liberty.  Ha- 
beas Corpus.  Power  of  Government  over  Personal  Lib- 
erty, Husband  and  Wife.  Parent  and  Child.  Guardian 
and  Ward.  Master  and  Apprentice.  Master  and  Servant. 
Schoolmaster  and  Pupil.  Principal  and  Surety.  Creditor 
and  Debtor.      -  -        - 493 

CHAPTER  XYII. 

Of  Constitut**>nal  Protection  to  the  Person  of  the  Citizen  other 
than  Personal  Liberty,  including  Rights  and  Immuni- 
ties of  the  Citizen.  Quartering  Soldiers  in  Private  Houses. 
Unreasonable  Searches  and  Seizures.  Accusation  and 
Trial  for  Crime.  Excessive  Baih  Eines.  Cruel  and  un- 
usual Punishment.  The  Right  to  Eree  Discussion  and  Pe- 
tition. The  Ereedom  of  Speech  and  of  the  Press.  The 
Eree  Exercise  of  Religious  Opinion.      -        -        -        -        525 

CHAPTER  XVIII. 

Of  Parliamentary  Law,  and  of  the  Privileges  and  Incidental 
Powers  of  Legislative  Assembhes,  including  Breaches  of 
Privilege  and  Legislative  Contempts.  Who  may  be  held 
liable  therefor.  American  Yiew  of  the  Law  of  Privilege  of 
England,  and  of  the  State  of  New  York.        _        .        -        566 

CHAPTER  XIX. 

Of  Constitutional  Interpretation.  American  Rules  and  Max- 
ims for  Constitutional  Construction ;  and  of  Constitutional 
Powers.       ---------        654: 


TABLE  OF  CASES 

EEFEERED  TO  IN  THIS  VOLUME. 


AI)leTnnn  v.  Booth,  332. 
Adams  V  Kivers,  394 

"      V.  Ilanoroft,  190. 

"      Y.  Field,  27-1. 
Adams  &  Lambert's  Case,  287. 
Admiral  GrilUn's  Fisli  Pond  Case,  G18. 
Albany  Northern  IIK.  Co.  v.  Browuell, 

383. 
Albee  v.  May,  79. 
Alexander  V.  Maj-or,  19L 
Almy  V.  Harris,  275. 
Amis  V.  Smith,  353,  35-i. 
Andrews  v.  United  States,  245. 
Anthony  v.  Cardigan,  227. 
Andover,  A'c,  Turnpike  v.  Gould,  275. 
Ankrim's  Case,  158. 
.Vrcher  v.  Bokeuham,  189. 
Armstrong  v.  Carson's  Executors,  3G0. 
Ashley's  Case,  111. 
Ascough's  Case,  152. 
Attorney  General  v.  Panter,  1 70. 

"  "V.  Pougett,  172. 

"      V.  Staggers,  252- 
Atkins  V.  Kiujian,  22  !• 
Atchison  v.  Everitt,  261 . 
Atwater  v.  Woodbridge,  478. 
Austin  V.  Stevens,  1G5. 


B 


Barn  v.  Cervallo,  170. 

Bank  of  Savings  v.  Collector,  188. 

Bailey  v.  Murin,  100. 

Bank  of  Hamilton  v.  Dndly,  19G. 

"     of  U.  S.  V.  Daniel,  196,  346. 

"     of  U.S.  V.  Lee,  240. 
]5arnes  v.  Badger,  223. 
Baring  V.  Erdman,  203. 
liarnard  v.  Vitch,  224. 
Barber  v.  Dennis,  250. 
B.irrell  v.  Darlington  &  Stockton,  BE. 

Co.,  257. 
Bassett  v.  Carlton,  275. 
Barnes  v.  Cro'we,  289. 


Barron  v  Maj-or  of  Baltimore,  351. 
Baxley  v.  Linah,  359. 
Balfour  v.  Chew,  359. 
Baldwin  v.  Mayor  of  N.  Y.,  G2. 
Bank  of  Augusta  v.  Earle,  355,  CO. 

"      "  Chenango  v.  Brown,  G2. 

"      "  Utica  V.  Smedes,  53, 
BallanHne  v.  Golding,  94,  98. 
Bassett  v.  United  States,  70. 
Baker  v.  Lovett,  92. 
Barrington's  Case,  5G. 
Baley  v.  llampacker,  1G3. 
Barker  v.  Redding,  108. 
Bates  V  Yoorhees,  149. 
Baker  v.  Field,  359. 
Bank  of  Alabama  v.  Dalton,  360. 

"     of  Atigusta  V.  Earl,  361. 

"     of  Rome  v.  Village  of  Rome,  426, 
Baker  v.  Johnson,  395. 
Barron  v.  The  Mayor,  400. 
Baker  v.  City  of  Boston,  451. 
Bank  of  Columbia  v.  Okely,  4C9. 
Baldwin  v.  Hale,  476. 
Bachelder  v.  Bachelder,  482. 
Barbour  v.  "Walls,  359. 
Barber  v.  Root,  482,  483. 
Bates  V.  Delavan,  485. 
Beals  V.  Hale,  183. 
Beach  v.  Viles,  196. 
Bell  V.  Morrison,  196 
Beers  v.  Haughton,  196,  197. 
Beebe  v.  Griffin.  205. 
Beauregard  V.  New  Orleans,  196. 
Bell  V.  The  Hull  &  Selby  RR.  Co.,  258. 
Bennett  v.  Daniel,  218. 
Beard  v.  Rowan,  108. 
Beale  v.  "NVoodhull,  79. 
Bentty  v.  Knowler,  55,  58, 
Beebe  V.  State,  79. 
Bell  v.  Morrison,  148. 
Bennett  v.  Boggs,  424. 
Beebe  v.  GrifKu,  144. 
Beazely  v.  Beazely,  96. 
Beekman  v.  Saratoga  &  Schenectady  EB, 

Co.,  375. 
Bennett  v.  Boyle,  383. 
Bellinger  v.  N.  Y.  Central  RR.  Co. ,  393. 
Bennett  v.  Boggs,  80. 


XIV 


T.\ELE   OF  CASES. 


Bench  v.  Newbury,  431 . 

Beuedict  v.  Vauclerbilt,  -iGl. 

Jieunett  v.  Daniel,  260. 

Beuvon  v.  EveljTi,  615. 

Bi-ssell  V.  Edwards,  350. 

Biddis  V.  James,  359. 

Bigg  V.  Commonwealth  of  Penn.,  057. 

Ulanchard  v.  Eussel,  60. 

"         V.  Spraguc,  145,  183. 
"         V.  Russell,  361. 
Wleecker  v.  BaUow,  412. 
Bloom  V.  Burdick,  222,  224. 

"       V.  Richards,  466. 
Bloomer  v.  StoUy,  157. 
Blodgettv.  Jordan,  359. 
Bloxam  Assignee  v.  Elsee,  124. 
Blue  V.  McDuffee,  108. 
Bloodgood  V.    IMohawk  &  Hudson  RR. 

Co.,  362,  391,  392. 
Bloodgood  V.  M.  &  H.  RR.  Co.,  376,  415. 
Bognrdus  v.  Trinity  Church,  43,  55,  274. 
Boyd  V.  Barringer,  165. 
Bowen  v.  Lease,  155,  156. 
Borrodaile  v.  Hunter,  197. 
Bonham's  Case,  197. 
Bonaparte  v.  The  Camden  &  Amboy  RR. 

Co.,  417. 
Borden  v.  Fiich,  482. 
Bole  V.  Horton,  241. 
Boyuton's  Case,  235. 
B>i-  yle  V.  Arlege,  354. 
Bradshaw  v  Rodgers,  390. 
Bradley  v.  Heath,  542 . 
Bradshaw  v.  Heath,  482. 
Brashear  v.  "West,  196. 
Brewer  v.  Blower,  81. 
"      V.  Harbeck,  283. 
"      V.  Blougher,  183. 
Brisham  v.  Peabody,  224. 
Bristol  V.  Newch&stcr,  37. 
Brown  v.    County   Commissioner,  73, 

155. 
Brown  V.  Buzan,  111. 

"      v.  Pxiriy,  144,  150,  157,  257. 
"      V.Wright,  179. 
"      V.  State  of  Maryland,  460. 
Brunson  v   Kenzie,  472. 
Bronson  v.  Kinzie,  472. 
Brvant  v.  Hunters,  360. 
Brunell  v.  Waide,  200. 
Brace  V.  Schuyler,  167. 
Burnham  v.  Acton,  106. 
Butler  V.  Palmer,  163,  415. 
Buffalo  Plank  E.  Co.  v.  Commissioners, 

220. 
Buford  V.  Hickman,  359. 
Butler  V.  Palmer,  362. 
Buffalo  &  N.  Y.  C.  RR.  Co.  v.  Brainard 

376. 
Buckingham  v.  Smith,  379. 
Bushnell's  Cfl,se,  531. 
B'oxLingame  v.  Burlingame,  544. 


Buckner  v.  Finlay,  346. 
Burnside  v.  Whitney,  244. 
Butler  &  Baker's  Case,  237,  289. 
Bm-dett  v.  Abbott,  624,  630,  631. 
Byron  v.  Sudbury,  228. 

0 

Calder  v.  Bull,  79,  80,  Si,  165,  168,  370. 
Calkin  v.  Baldwin,  392. 
Calvert  v.  Makepeace,  159. 
Call  V.  Hagger,  474. 
Calkins  v.  CalkLas,  163. 
Campbell  v.  Claudius,  196,  354. 
Camden  v.  Anderson,  159. 
Cancemi  v.  The  People,  531. 
Candee  v.  Heyward,  231. 
Caniff  V.  The  Mayor,  &c.,  223. 
Canheld  v.  Ford,  284. 
Carroll  v.  Olmstead,  488. 

"      V.  Carroll,  167. 
Caswell  V.  Allen,  223. 
Cases  of  Leases,  293. 
Case  of  Leases,  197. 
"     of  Sheriff  of  Middlesex,  023. 
"     of  Cope  and  Others,  025. 
"     of  Howes,  158. 
Cass  V.  Dillon,  188. 
Castle's  Case,  161. 
Cates  V.  Knight,  260. 
Catlin  V.  Underbill,  359,  360. 

"      V.  Gunter,  149, 
Catimer  v.  Sir  E.  Knatchbull,  644- 
Cathcart  v.  Robinson,  42 . 
Cawdrie's  Case,  238. 
Central  Bridge  Corporation  v.  City  of 

Lowell,  378. 
Charleston  v.  Benjamin,  466. 
Champlin  v.  Champlin,  289. 
Cheval  v.  Nichols,  242. 
Chicago  City  v.  Robbins,  354. 
Christie  Benton's  Case,  043. 
Christy  v.  Pridgion,  143. 
Chase  v.  N.  Y.  Cent.  RR.  Co.,  203,  246. 
"      V.  United  States,  200. 
"      V.  Chase,  482. 
Chester  v.  Chester,  192. 
Chegary  V.  Jenkins,  113. 
Churchill  V.  Crease,  110,  117,  160,  273. 
Citv  of  Bridgex^ort  v.  Housatonic  RR. 

Co.,  426. 
Cisco  V.  Roberts,  403. 
City  of  Galena  v.  Armey,  220. 
Clark  V.  Citv  of  Rochester,  421. 
"     V.  Smith,  353. 
"     V.  City  of  Utica,  272. 
"     V.  Clark,  482. 
"     V.  Bynum,  108. 
"     V.  Crane,  225. 
Clayton's  Case,  294. 
Cliquot  Champagne,  251. 


TABLE   OF  CASES. 


X7 


Cochrane  v  Van  Surlay,  487,  489. 
Coe  V.  Shiiltz,  44r,. 
Coffin  y.  Coffin,  007. 
"      V.  Coffin,  51G. 
Cohens  v.  Virginia,  198,  34G,  057,  074. 

"      V.  Goss,  224. 
Tolt  V.  Eves,  433,  435. 
Columbian  Manufacturing  Co.   v.  Van 

Derpool,  150. 
Commonwealth  v.  Tewksbury,  4.54, 
V.  Alger,  448,  453. 
"  V.  McWilliams,  424. 

V.  McCloskey,  424. 
V.  Hartman,  308,  424. 
V.  Hartwell,  274, 
•'  V.  Elandiug,  540,  548. 

««  V.  Kueeland,  500. 

"  V.  Baird,  517. 

««  V.  McCloskev,  80,  424. 

V.  Kimball,  202. 
Commercial  &  Farmers  Bank  of  Balti- 
more V.  Patterson,  358. 
Commissioners  v.  Keith,  204. 
Company  of  Cutlers,  v.  Eustin,  158. 
Cone  V.  Bolles,  253. 
Constanline  v.  Van  Winkle,  108. 
Conley  v.  Palmer,  100. 
Cook  V.  Board  of  Police,  157. 

"    V.  Moffiit,  475. 
Tool  V.  Smith,  lo5. 
<   lop.r  V.  Tilfair,  14-5. 
V.  Cooper,  483. 
•'       V.  Shultz,  440,  455. 
"       V.  Stone,  550. 
•'       V.  Barber,  550, 
"      V.  Greely,  550. 
Corbet's  Case,  234. 
County  Judge  of  Shelby  Co.  v.  Shelby 

EE.'Co.,  419. 
Corwin  v.  Merritt,  224. 
Craig  V.  Brown,  190,  358,  359,  300. 
Creswell  v.  Wittenoom,  108. 
Crespigny  V.  Witteboon,  207,  269,  271. 
Crittenton  v.  Wilson,  275. 
Crossly  V.  Arkwright,  190. 
Crowell  V.  Crane,  181. 
Crosby's  Case,  022. 
Cruger  v.  Cruger,  255. 

V.  The  Hudson  EE.  Co.,  397. 
Cummings  v.  Missouri,  108. 
Cunningham  v.  Cassidy,  222. 
Cubir  V.  Douglass,  400 


D 


Dash  V.  Van  Kleeck,  09,  150,  107. 
Davis  V  Fairbarn,  71,  155. 
Darlington  v.  Mayor  of  New  York,  148. 
Dauks  V.  Quackenbush,  104. 
Davison  v.  Johannot,  105. 
V.  Gill,  228. 


Davis  V.  O'Farrell,  167. 

"    V.  Mason,  353. 
Dartmouth  College  Case,  430. 

"    V.  Woodward,  408,  477. 
Daws  V.  JIason,  190. 
Davy  V,  Warren,  199. 
D'Arcy  v.  Ketchum,  359,  300. 
Dewolfv.  Eaband,  190. 
Devarrarique  v.  Fox,  371,  375. 
Denny  v.  Mattoon,  492. 
Denning  v.  Smith,  224. 
Denn  Dem  Manifold  v.  Diamond,  255, 
Ditson  v.  Dit^on,  483,  480. 
District  Township  v.  Dewolf,  224. 
Diblee  v.  Turnip,  197. 
Dorsey  v.  Dorsey,  483. 
Dorrasseau  v.  United  States,  202. 
Douglas  V.  Eyre,  199. 
Donne  v.  Parkhurst,  170. 
Dougherty  v.  Snyder,  00. 
Dodge  v.  Woolsey.  83. 
Doe  Dem  Birthwhistle  v.  Vardcll,   97, 

110. 
Downing  v.  Eugcr,  140. 
Dow  V.  Norri.s,  104. 
Downell  v.  Columbian  In.s.  Co.,  193. 
Donaldson  v.  Wood,  203. 
Douglas  V.  Eyre,  292. 
Doe  Dem  Myatt  v.  St.  Helena  EE.  Co., 

294. 
Doe  Dem  Tennyson  v.  Yarmouth,  295. 
Dodge  V.  W  oolsey,  330,  346,  351. 
Donohoo  V.  Erannan,  359. 
Dominus  Eex  v.  Keller,  517. 
Dole  V.  Lyon,  551. 
Donne  v.  *Walsh,  012. 
Drawbridge  Co.  v.  Shepherd,  58. 
Drummond  v.  Drummoud,  97. 
Dubois  V.  McLean,  189. 
"      V.  Hepburn,  240. 
Dudley  v.  Mahew,  275. 
Dutfy  V.  The  People,  441,  442. 
Dweily  V.  D welly,  244. 


E 


Earl  of  Wendrelsea  v.  Garrety,  97. 

"     "  Aylesbui-y  v.  Patterson,   189. 
East  Hartford  v.  East  Hartford  Brie 

Co.,  196. 
Edrich's  Case,  207. 
Edward  v.  Darley,  189. 
Ely  V.  Ilolton,  1(55. 
Elmendorf  v.  Ferry,  19G. 

V.  Tavlor,  197,  353. 
Elliott  V.  PearsoU,  342. 
Elmore  v.  Mills,  359. 
Ennris  v.  Smith,  59. 
Emerich  v.  Harris,  343,  436. 
Embury  v.  Conner,  376,  399. 
Englisbbee  v.  Helmuth,  01. 


XVI 


TABLE   or   CASES. 


Erb  V.  Sc'.tt.  3G0. 
Ervine's  Ai)]3eal,  480,  490, 
Evsms,  q.  t    v.  Stephens,  288. 
txi)jirte,  Bollman  &  Swartout,   341,  077. 
Povlill,  359, 
Hall,  273. 
Hill,  248. 
Garland,  163. 
"        Diyden,  ISJ. 
"        Newman.  61. 

Heath,  223. 
"        Common  Conncil    of  Albanj', 
224. 
Eyston  v.  Studd,  175,  233,  234,  236. 


F 


Fail-child  v.  Guinu,  164. 
Falconer  v.  Campbell,  (il. 
Farauru  v.  Black  Comal,  145. 
Farmers'  &  Mechanics'  Bank  v.  Jarvis, 

53. 
Ferguson  v.  Harwood,  360. 
Fenton  v.  Garloch,  485. 
Fellows  V.  Clay,  265. 
Ferry  v.  Bank'of  Cent.  N.  Y.,  283. 
Fish'v.  Fisher.  247. 
Fire  Department  v.  Noble,  425. 
i'isher  v.  Haldimau,  353. 
Field  V.  Gibbs,  360. 
Fletcher  v.  Peck,  82,  61,  02,  370,  390, 

423,  478. 
Foster's  Ca.se,  72,  110,  117,  157,  240,  287. 
Foster  V.  Essex  Bank,  400. 

V.  Fiiller,  514. 
Forth  V.  ( 'hainnan,  194. 
Fort  V.  Bench,  272. 
Fowler  v.  Challerton,    172. 
Foxcraft  v.  Mallett,  198. 
Frary  v.  Frary,  482. 
Franklin  Glass  Co.  v.  "White,  275. 
Freeman  v.  Kobiuson,  198. 
French  V.   Braiuton  Manufac.  Co.,  380. 
Fry  V.  Bennett,  550. 


G 


Gardner  V.  Collins,  190,  353. 

V.    Newburgh,    382,    387,    391, 
392. 
Garrett  v.  Beaumont,  165. 

"       V.  Stockton,  167. 
Gelpeche  v.  City  of  Dubuque,  145. 
Gibbons  v.  Ogdens,  462,  662,  670,  071. 
Gilbert  v.  Th'e  People,  544. 

"       V.  Fletcher,  519. 
Gillette  V.  Jones,  380. 

"       T.  Moody,  74. 
Gilmore  v.  Philadelphia,  464. 

"        V.  Shuter,  103. 


Gildwit  v.  Gladstone,  250. 
Giezy  v.  C.  W.  &  Z.  E.  R.  Co.,  380. 
Gleasou  v.  Gleason,  483. 
Gloucester  Ins.  Co.  y.  Younger,  354. 
Golden  v.  Rice,  423. 

"      T.  Prince,  352. 
Goold  T.  John,  55 . 
Goshen  v.  Stonnington,  80. 
Gore  V.  Brazier,  202. 
Gordon  v.  Cheltenham  RR.  Co .  258. 
Governor  V.  Meredith,  445. 
Grant  v.  Courter,  426. 
Gray  y.  Shilling,  256. 
Green  v.  Biddle,  472. 

"      V.  Sarmi'ento,  360. 

"     V.  Neal,  196,  354. 
Greenlaw  v.  Greenlaw,  482. 
Greenough  v.  Greenough,  70. 
Gregory's  Case,  110,  117,  274,  275. 
Gregnon's  Lessee  v.  Astor,  '34'^y. 
Griffith  V.  Indiana  &  Ohio  R   R.  Co., 

42(;. 
Griesby's  Case,  292 . 
Gross  V.  Ogilive,  253. 
Grantham  v.  The^ile,  254. 
Guy  V.  Felton,  250. 
Gurool  V.  Lafferty,  198. 
Gwinn  v.  Burrell,  207. 


H 


Harrington  v.  The  People,  224. 

Hallett  V.  Novion,  249. 

Hardman  v.  Whittacre,  252. 

Hamilton  v.  Dudley,  353. 

Hathaway  v.  Rooch,  354. 

Hampton  V.  McConuell,  358,  300 

Hay  V.  Cohoes,  381. 

Hamjiden  v.  Commissioners,  400, 

Hanson  v.  Vernon,  420. 

Hart  V.  Mayor  of  Albany,  451,  454 

Hanover  v.  Turner,  482,  483. 

Harding  v.  Alden,  483. 

Harrison  v.  Harrison,  483. 

Harbeck  v.  The  Mayor,  &c.,  157. 

Hare  v.  dHare,  483. 

Hartcanv.  Hartcan,  483. 

Hancock  v.  Hamstead,  513. 

Harp  V.  Osgood,  522. 

Hastings  v.  Liish,  546. 

Halbert  v.  Skyles,  53. 

Hadden  v.  Collector,  102. 

Hart  v.  Cleis,  144,  183. 

Hackley  v.  Spragiie,  145. 

Harvey  v.  Tyler,  14.5,  146. 

Hartford  v.  United  States,  155. 

Harrington   v.    Trustees   of  Rochestei 

156. 
Hartungv.  The  People,  157. 
Hartford  Bridge  Co.  v.  Union  Ferry  Co., 

179. 


T.VELE  OF  CASES. 


XTll 


PTadflpn  v.  Collector,  211. 

Hatch  V.  Bentou,  223. 

Henderson  v.  Grifliu,  3"i3,  ly^. 

Huywiird  v.  :Mayor  of  N.  Y.,  37G,  O'Jo. 

Hepbnrn  v.  Curts,  4U0. 

Ilej,'(u-iuau  V.  West  RR.  Corporation, 
4 ;')(). 

Huald  V.  The  State,  15S. 

1  [eyden's  Case,  187. 

Head  V.  Ax'niorv,  223. 

Herrick  v.BorJt,  282. 

Hindu  V.  Vallier,  353,  354. 

Hill  V.  The  People,  443. 

Hosnier  v.  Loveland,  514. 

Hoar  V.  Wood,  545,  540. 

Hotchkiss  V.  Oliphant,  550. 

Uodge.s  V.  Moore,  647. 

Houston  V.  Moore,  6G9,  671,  072. 

Hollowell  V.  Corporation  of  Bridge- 
water,  117. 

Holme.s  v.  Carley,  144,  203. 

How  V.  Peckham,  145,  185. 

Howard  V.  State,  158. 

Ho])kins  v.  Lndlow,  359. 

Hoke  V.  Henderson,  399. 

Holloway  v.  Sherman,  400. 

Howell  V.  City  of  Buffalo,  400,  40G. 

Houston  V.  Moore,  464. 

Hopkins  v.  Hopkins,  482. 

Hollister  v.  Hollister,  483. 

Howard  V.  Thompson,  542. 

Hunt  V.  Bennett,  542. 

iliilfv.  Bennett,  549. 

Ilubbell  v.  Weldon,  224. 

Hunter  v.  Potts,  94,  98. 

Iluvdkaper  V.  Burns,  119. 

Hudson  V.  Mayor  of  N.  Y.,  220. 

Hudler  v.  Golden,  231. 

Hubbard  V.  Johnston,  251. 

Hutchinson  v.  Manchester,  &c.,  Hall- 
way Co.,  271. 

Hubbard  v.  Northern  EE.  Co.,  332. 

Huntv.  Lyle,  359. 

Iloi^kins  V.  Ludlow,  359. 

Hull  V.  Hull,  483. 

HubbeU  v.  Hubbell,  483. 


IngcrsoU  v.  Skinner,  24G. 
Ingram  v.  Foote,  54. 
lumanv.  Foster,  552. 


Jaekscu  v.  Bradt,  74,  275, 
V.  Gilchirst,  108. 
V.  Lewis,  126,  143,  208. 
"       V.  Collins,  144. 

V.  Van  Zandt,  145. 

3 


Jackson  v.  Colesworth,  254. 
"        V.  Chew,  353. 

V.  The  People,  433. 
"        V.  Jackson,  482. 
Jacob  V.  United  States,  272. 
Jacobi  V.  City  of  Louisville,  390. 
Jarvis  v.  Jarvis,  163. 

"      V.  Hatliaway,  544. 
Jefferson  Br.  Bk.  v.  Shelby,  198,  352. 
Jesson  V.  Wright,  199. 
Jeukinson  v.  Thomas,  248. 
Jones  V.  Walker,  371. 
"     V.  Axen,  54. 
"     V.  Van  Zandt,  354. 
'«     V.  Perry,  399. 
Johns  V.  Johns,  74. 
Johnson  v.  Commonwealth,  79. 
"        V.  BuiTcU,  1G3. 

V.  Bird,  183. 
"        V.  lleynold.s,  359. 
Johues  V.  Johnes,  261. 

K 

Kayv.  Gorden,  160. 
Keau  V.  McLaughleu,  544. 

"    V.  Bice,  359. 
Kellogg  V.  Oshkosh,  157. 
KeLsey  v.  Forsyth,  197. 
Kemp  V.  The  IBrighton  ER.  Co.,  258. 
Keany  v.  Farmers'  &  Mechanics'  Bank, 

3.54. 
Kerry  v.  Merchants'  Bank,  197. 
Kerrison  v.  Cole,  249. 
King  of  Spain  v.  Oliver,  341. 
King  V.  Burrell,  199. 

"    V.  Inhabitants  of  St.  Gregory,  224. 

"    V.  Carlisle,  548. 

"    V.  Root,  550. 

"    V.  Abingdon,  549,  554. 
Kilbourne  v.  Woodworth,  486. 
Kirldand  v.  Smith,  360. 
Kirbv  v.  Show,  368. 
Kimball  v.  Kirnball,  482. 
Knight  V.  Crochford,  242. 


Lane  v.  Dorman,  490. 

"     V.  To\\Tisend,  35-L 
Lansing  v.  Smith,  393. 
Lanfeux  v.  Huntley,  54. 
La  Frombois  v.  Jackson,  149. 
Lavague  v.  Stanley,  24.2. 
Lee  V.  Milner,  258. 
"    V.  Rodgers,  55. 
Loavitt  V.  Blatchford,  144. 
Lewis  V.  ^larshall,  148. 
Lessee  of  Parish  v.  Ferris,  148. 
Leversee  v.  Reynolds,  179. 


XAaii 


TABLE   OF  CASES. 


Legiijett  V  Hunter,  64,  415. 

Le  Graud  v.  Hampsed  College,_  53. 

Lelaud  v.  Wilkinson.  54,  58,  358. 

Lewis  V.  Owen,  94,  98. 

Leneve  v.  Leneve,  242. 

Lister  v.  Lobley,  257. 

Litch  V.  Brotherson,  1G4. 

Litchfield  v.  McOmber,  425. 

Lindenmnller  v.  The  People,  4Go. 

Livingston  v.  :Maryland,  59. 

'•  V.  Harris,  15fi. 

"  V.  Moore,  196. 

"  V.  Laiuin,  220. 

"  V.  Mayor  of  New  York,  391, 

412. 
Livingston  v.  The  Mayor,  433. 

"  V.  Moore,  435. 

Lord  V.  Chadbourne,  400. 
Lord  Buckhart's  Case,  237. 

"    Lovelace's  Case,  72. 
Lolly's  Case,  96. 
Locke  V.  Dane,  165. 
Love  V.  Hinckley,  179. 
Lowe  V.  Vick,  19S. 
Looker  v .  Halcome.  255. 
Loring  v.  Stone,  25G. 
Lombard  v.  Bayard,  353. 
Long  V.  Smith,  354. 
Long  "Wellesley's  Case,  570. 
Lothrop  V.  Blake,  359,  360. 
Luke  V.  City  of  Brooklyn,  62. 
Lucas  V.  Ensign,  220. 
Ludlow  V.  Van  Rensselaer,  246. 
Luther  v.  Borden,  336. 
Luycolm  v.   Battt'lle,  60. 
Lyon  v.  Jerome,  382,  392. 

M 

Macomber  v.  Mayor  of  New  York,  79. 

Macarthy  v.  De  Caix,  96 . 

Mahurin  v.  Bicktord,  359. 

Mason's    Administrators   v.   Lawrason, 

359. 
Marbury  v.  Madison,  3G3. 
Malcom  v.  Bodgers,  220,  224. 
Maitland  v.  La:wrence,  200. 
Mayo  V.  Simpson,  185. 
Martin  v.  Mayor,  &c.,  224. 
"       V.  Ford,  249. 
"      V.  Hunter's  Lessees,  350,  353. 
"       V.  Hunter,  663. 
Maillard  v.  Duke  of  Argj-le,  280.^  _ 
Massingule  v.  Downs,  352,  353,  854. 
Manice  v.  Hudson  R.  RR.  Co.,  280. 
Manly  V.  Manly,  483. 
Maas field  v.  Mclntyre,  483,  486. 
Marsh  v.  Chestnut,  225. 

"       V.  ShTite,  246. 
Marshall  v.  Langworthy,  224. 
Mallory's  Case,  287. 


Mason  v.  Boom,  119. 
Maggs  V.  Hunt,  160. 
Mapes  V.  "Weeks,  552. 
Mathews  V.  Beach,  549. 
"         V.  Zanes,  100. 
Matter  ot  the   Application  of  Rens.  & 
Sar.  RR.  Co.  v.  Davis,  384. 
of  Albany  Street,  385. 
"       of  Furman  Street,  391. 
"        ol  Bush  wick  Avenue,  401. 
of  Mayor  of  New  York,  412. 
of  Trustees   of   N.   Y.   P.   E, 
School,  425 . 
"       of  John  and  Cherry  Street,  429. 
"       of  Garland,  432. 
' '       of  James  De  Vancene,  455 . 
"       of  Cherry  Street,  468. 

of  Empire  City  Bank,  481,  483, 

484,  222. 
of  Jones,  488. 
of  Wilson,  62. 
"        of  Richardson,  100. 
of  Wellman,  100. 
of  Tappan,  106. 
"       of  Oliver  Lee  Bank,    163,    173, 
348. 
of  A.  H.  Garland,  172. 
of  Wood,  277. 
of  Townsend,  380. 
of  Kerr,  382. 
Mayor  of  New  York  v.  Lord,  445,  448 . 
Mayor,  &c.,  v.  Milne,  454,  460. 
Mayor  V.  Colgate,  104. 

"       V.  Foulmod,  354. 
McCarter  v.  Orphan  Asylum    Society, 

144,  145. 
McCluskey  v.  Cromwell,   193,  144,  146, 

205. 
McCuUoch  v.  State,  111. 
McCleeny  v.  Silliman,  148,  196,  354, 
McCool  V.  Smith,  155,  257. 
McCabe  v.  Emerson,  165. 
McCulloch  V.   Maryland,  667,  G71,  350, 

351,  355,  405. 
McCormickv.  Rusch,  400. 
McCarteev.  Orphan  Asylum,  189. 
McClutchen  v.  Marshall,  196. 
McDermott's  Appeal,  483. 
McDowell  V.  Payton,  196. 
McElmoyne  v.  Crthen,  360. 
McFarland  v.  Griffith,  354. 
McGiftertv.  McGift'ert,  482,  483. 
McGuire  v.  McGuire,  483 . 
McGlaughey  v.  Wetmore,  544, 
McKeen  v.  Delaney,  196. 

"        V.  Delaney's  Lessees,  352,  355. 
McMaster  V.  Commonwealth,  391. 
McMillan  v.  Bench,  545. 
McNiel  V.  liolbrook,  354. 
Merchants'  Bank  v.  Cook,  273. 
Mewster  v.  Spalding,  360. 
Metropolitan  Bank  v.  Van  Dyck,  C67. 


TABLE  OF  CASES. 


SIX 


Mills'  Case,  643. 

Miller's  Case,  153. 

Mingo  V.  Gilmour,  79. 

Milton  V.  Elliott,  118. 

Minis  V.  United  States,  118,  119. 

Millard  v.  Lawrence,  1413. 

Milne  v.  Huber,  150. 

Miller  v.  Moore,  104. 

"       V.  Finkle,  223. 

"       V.  Taylor,  275. 
^lills  V.  St.  Clair  Co.,  213. 
Miner  v.  Mechanics'  Bank,  220. 
Millard  v.  Lake,  247. 
Mitchell  V.  Mitchell,  205. 

"        V.  Smith,  249. 
Miles  V.  Cadwell,  353. 
Mills  V.  Duryea,  358,  300. 
Morgan  v.  Surman,  192. 

'»        V.  Centenices,  198. 

"       V.  King,  394. 
Morgan,  Ac,  v.  Horsman,  &.C.,  249. 
Moser  v.  Newman,  198. 
Morse  v.  Gould,  104,  471,  472. 

"      V.  Williamson,  224. 
Morris  V.  Miller,  218,  260. 

"       V.  The  People,  222. 
Money  v.  Leach,  527. 
Morrell  v.  Dicky ,_  486. 
Mouse's  Case,  445. 
Murray  V.  Gibson,  105,  107,  190. 
Murray's    Lessees    v.    Hobokeu  Land 

Impr.  Co.,  409. 
Mun<^er  v.  Tonawanda  RR.  Co.,  395. 
Murphy  v.  The  People,  433. 
Mutual  Safety  Insur.  Co.  v.    Cargo   of 

Geoi-ge  Olcutt,  354. 


N 


Nash  V.  Allen,  267. 

Nations  v.  Johnson,  481. 

Nave  V,  Nave,  220. 

Nelson  v.  The  People,  111. 

Nesmith  v.  Sheldon,  196,  352,  353. 

Newburgh  Turnpike  Co.  v.  Miller,  220. 

New  York  &  Erie  RR.   Co.  v.  Coburn, 

220. 
Newell  V.  The  People,  146,  203. 
New  England  Screw  Co.  v.  Blivin,  19G. 
New  River  Co.  v.  Graves,  234. 
Neves  v.  Scott,  354. 
Nichols  V.  Bridgeport,  381. 
Nicholson  v.  United  States,  179. 
N  orris  V.  Clymer,  424. 

"       V.  Croker,  157. 
Notley  V.  Buck,  217. 


o 

Ogden  V.  Sanders,  475,  111. 


Ogden  V.  Blackledgc,  111,  15C. 
"      V.  Strong,  145,  1m8. 
"      V.  Saunders,  002. 
Ohio  V.  Hinchman,  359. 
Opinion  ot  Judges,  489. 
Orlord  v.  Ram-sey,  512. 
Oriental  Bank  V.  Freeze,  105. 
Osboru  V.  United  States  Bank,  G5. 

"       V.  Humphrey,  478. 
Owners  of  Ground  Assessed  v.  Mayor  ot 

Albany,  412. 
Owners  of  Brig  Gray  v.  Owners  of  Ship 
John  Trasiu,  459. 


Pacific  Mail  Steam  Co.  v.  Jollifife,  157. 
Palmer  v.  Conley,  158,  246. 
Parsons  v.  Beckford,  354. 

V.  Bedford,  482. 
Parker  v.  Bid  well,  522. 
Patterson  v.  Philbrook,  165. 

v.  Winn,  189. 
Pawlins  v.  Bird's  Execiitors,  485. 
Pawling  V.  Wilson,  485. 
Payson  v.  Payson.  482. 
People  V.  Smith,  370. 

V.  Common  Council,  220. 

"      V.  Cook,  222,  223,  224. 

"      V.  Allen,  222,  223. 

"      V.  Holly,  223. 

"      V.  Peek,  223. 

"      V.  Dawson,  223. 

"     V.  Common  Council  of  Brooklyn, 
224. 

"      V.  Schemerhorn,  224,  225. 

"      V.  Phelps,  275. 

"      V.  Livingston,  275. 

"      v.  Hays,  277. 

"      V.  Schuyler,  282. 

"      V.  Morrell,  302. 

"      V.  Corning,  368. 

"      V.  Supervisors  of    Orange,  368, 
3G9,  111. 

'•      v.  N.  Y.  Cent.  RR.  Co.,  368,  380, 
126,  143,  144,  208. 

"      v.  JIayor,  374. 

"      v.  Dcveliu,  01. 

"      v.  Denniston,  62. 

"      v.  Commissioners  of  Taxes,  62. 

"      V.  Board  of  Supervisors  of  N.  Y., 
09. 

"      V.  Runkle,  74. 

"      V.  Huntington,  79. 

"      V.  Moores,  92. 

"      v.McConn.  103. 

"      V.  Kills,  104,  105. 

'^      V.  O'Brian,  104,  106. 

"      V.  Failing,  104,  100. 
People  Ex  Rel  Herrick  v.  Smi.  h,  3''7, 

383,  420. 


sx 


TABLE   OF   CASES. 


I'eojjle  V.  L;i\\.  •177,  ■42G. 

"      V.  Kerr,  377. 

"      V.  Hayden,  392. 

"      V.  Ciiual  Appraisers,  393. 

"      V.  Mayor  of  Brooklyn,  403,  iOG, 
408,  409,  375. 

"      V.  Lawrence,  406,  425,  427. 

"      V.  Morrill,  415. 

"      V.Mitchell,  422. 

"      V.  Superv-isorsot  Livingston,  425. 
People  Ex  Eel  The  Detroit  Sc  Howell  IL. 
li.    Co.    V.    The   Township  Board  of 
Salem,  420. 
People  V.  Haws,  425. 

"      V.  Fisher,  442. 

"      V.  Hill,  442,  443. 

"      V.  Draper,  433,  452,  454,  01,  65, 
145,  3G2,  303,  380. 

"      V.  Shepherd,  452. 

"      V.  Nearing,  455. 

"      V.  Mciriug,  464. 

"      V.  Piatt,  477. 

"      V.  Humphries,  509. 

"      V.  Chigary,  509. 

"      V.  Olmstead,  509. 

"      V.  Mercien,  509. 

"      V.  Mahaney,  105. 

'«      V.  Stevens,  106. 

"      V.  Utica  Ins.  Co.,  141,  209. 

"      V.  Supervisors  of  Columbia  Co., 
145,  163. 

"      V.  Denning,  155,   156. 

"      V.  Toynbee,  120,  368,  369. 
Pearse  v.  Strood,  202. 
Pearson  v.  Lovejov,  231. 
Perine  V.  Ches.  &"Del.  Canal  Co.,  204, 

213. 
Perry  v.  Wilson,  387. 

"     V.  City  of  Worcester,  394. 
Pennock  v.  Dialogue,  42. 
Penhallow  v.  Doane,  332. 
Peck  V.  Pease,  159. 
Pierce  V.  Delancaltu,  113. 

"      V.  Hopper,  234. 
Pilford's  Case,  253. 
Pickford  v.  Grand  Junction  E,.  R.  Co., 

258. 
Pitchard  v.  Heywood,  259. 
Piscatequa  Bridge  v.  TSew  Hampshire 

Bridge,  382. 
Pitt's  Case,  647. 
Plumb  V.  Lawj-er,  165. 
Pollard's  Lessees  v.  Hagan,  374. 
Polk  V.  Wendel,  196. 
Poole  V.  Poole,  198. 
.•'      V.  Neal,  2-59. 
Pond  V.  Negers,  223. 
Pontex  Cun.,  233. 
Polk's  Lessee  v.  Weudal,  353. 
Pollard's  Heirs  v.  Kibbe,  54. 
Post  Master  General  v.  Early,  70. 
Potter  v.  Brown,  91,  98. 


Potter  V.  Hiscox,  48G. 

Poulterer's  Case,  102,  262. 

Powell  V.  Tattle,  146. 

Powers  V.  Bergen,  490. 

Providence  Bank  v.  Billings,  404,  424. 

Prosseaux  v.  Welch,  156. 

President,  &.c. ,  of  London  v.  Harrison, 

158. 
Proprietors  of  Kennebec  Purchase  v. 

Laborer,  165. 
Prince  v.  United  States,  167. 
Puckle  V.  Moore,  55. 
Pulling  V.  People,  278. 
Pugh  V.  Leeds,  294. 
Purdy  V.  The  People,  193. 
Pyms  V.  Mitford,  211. 


R 


Ptatcliffs  Case,  235. 

Raynham  v.  Canton,  359. 

Rector  v.  Smith,  544. 

Reeside's  Executors  v.  United   States, 

354. 
Reiser  v.  Tell  Association,  70. 
Renwich  v.  Morris,  275. 
Rexfordv.  Knight,  14.5,  189,  392. 
Regents  of  University  v.  Williams,  80. 
Reg.  V.  Baines,  113. 

"     V.  Inhabitants  of  St.  Edmonds,  151. 
Rex  Downs,  158. 
Rex  V.  Justices  of  Middlesex,  119. 

"    V.  Rodgers,  158. 

"    V.  McKenzie,  IGO, 

"    V.  Davis,  161. 

"    V.  Saintsburgh,  161. 

"     V.  Wright,  161,  209. 

"     V.  Boyell,  101. 

"     V.  Ever  don,  180. 

"    v.Burchett,  110. 

•'    V.  Archbishop  of  Armagle,  110,  117, 
152. 

"    V.  Shaw,  57. 

"    V.  Jeffrie,  57. 

"    V.  Ullerby,  57. 

"     V.  Williams,  102. 

"    V.  Althoes,  107. 

"    V.  Bailey,  171. 

"    V.  Loxdale,  190. 

"    V.  Smith,  191. 

"    V.  Marronetshire,  192. 

"    V.  Justices  of  Kent,  196. 

"     V.  Ditchett,  196. 

"    V.  Bolton,  198. 

"    V.  Stoke,  204. 

"    V.  Ramsgate,  204. 

"     V.  Inhabitants   of  Great    Bcntley, 
204. 

"     V.  Rose,  207. 

"     V.  Frost,  207,  208. 

"    V.  Inhabitants  of  Banbury,  207. 


TABLE  OF  CASES. 


XXI 


Rex  v.Larab,  210. 

"    V.  Neale,  210. 

♦•    V.  Youuger,  211. 

"    V.  Hawkswood,  211. 

"    V.  Upper  Passworth,  211. 

««     V.  Pembridge,  211. 

"    V.  Preston,  211. 

"     V.  Frauds,  211. 

"     V.  Barham,  210. 

"    V.  Justices  of  Shropshire,  21G. 

"    V.  Gweuop,  218. 

"    V.  Justices  of  Surrey,  218. 

"     V.  Marks,  218. 

'«     V.  AUeu,  219. 

"    V.  Inhabitants  of  Cumberlaml,  219. 

"    V.  Flockwood  Inclosure  Commis., 
220. 

"    V.  Barlow,  220. 

"    V.  Cunningham,  221. 

"    V.  ■\Voolstantou,  223. 

"    V.  St.    Nscholas  in  Ipswich,    223, 
250. 

"     V.  Locksdale,  224. 

'«    V.  Inhabitants  of  St.  Gregory,  226. 

"    V.  Liecester,  228. 

"    V.  Everdon,  229. 

"    V.  Birmingham,  229. 

"    V.  Bullock,  231. 

"    V.  Ilymou,  252. 

"    V.  Handy,  249. 

"    V.  Evered,  250. 

"     V.  Bleasdale,  252. 

"    V.  Inhabitants  of  Glastourj',  253. 

>«     V.  Sharpness,  255. 

"    V.  Richards,  «tc.,  253. 

"    V.  Croker,  257. 

"    V.  Gwenop,  2G9. 

"    V.  Morris,  270. 

"    V,  Harris,  272. 

"    V.  Jukes,  272. 

"    V.  IMarsack,  286. 

"    V.  Bland,  286. 

"    V.  St.  Laviour,  288. 

'«    V.  Creevey,  548,  554,  628,  629. 

'«    V.  Carlisle,  549. 

"    V.  Fisher,  550. 

"    V.  Kuggles,  560. 

'«    V.  Abingdon,  628. 

"    V.  Wright,  629. 

"    V,  Flower',  630. 

"    V.  Hobhouse,  631. 

"    V.  Earl  Fex-rers,  645. 
Rice  V.  Parkman,  488. 

"     V.  M.  &N.  W.  RR.  Co.,  145,  213. 
Richardson's  Case,  158. 
Richards  v.  Daggett,  202. 
Riggers  v.  Witton,  274. 
Ripple  V.  Ripple,  359. 
Richmond  RR.  v.  Louisa  RR.,  382. 
Robinson  v.  Prescott,  359. 

"         V.  Executors  of  Ward,  485. 
V.  Cliffon,  59. 


Roe  V.  Hersey,  100. 

Rodgers  v.  Bradshaw,  145,  189,  387  388, 
392. 
"       V.  Murry,  224. 

V.  Burns,  359,  360. 
Rosier  v.  Hale,  400. 
Ross  V.  Duval,  354. 
"    V.  McCluny,  196. 
"    V.  Barland,  353. 
Rowan  v.  Runnel.s,  354. 
Rockwell  V.  Hub  bell,  400. 
"         V.  Nearing,  481. 
Root  V.  King,  542. 
Roswelt  V.  Goddard,  111. 
Rowan  v.  Runnell,  198. 
Russell  V.  The  Mayor,  378. 
"       V.  Wheeler,  204. 
'«      V.  The  Mayor  of  N.  Y.,  445,  418. 
Runger  v.  Fogassa,  209. 
Rue  V.  Alter,  164. 
Ruchamboye  v.  Mottichmed,  274. 
Rundle  v.  Delaware   &  Raritan  Can;\l, 
353. 


s 


Salkeld  v.  Johnson,  200,  265. 
Sandiman  v.  Breach,  236. 
Sackett  v.  Andross,  163,  283. 
Sampson  v.  Overton,  359. 
Sands  v.  St.  John,  55. 
Salters  V.  Tobias,  70. 
Salters  Co.  v.  J.,  108. 
Savings  Bank  v.  Makin,  119. 
Sanchez  v.  The  People,  157_. 
Satterlee  v.  Mathewson,  165,  370. 
Scott  v.  Cleveland,  359. 

"     V.  Blanchard,  359. 

"    V.  Reid,  183. 
Scales  V.  Pickering,  257. 
Schrertzell  v.  Young,  359. 
Scrunshire  v.  Scrunshire,  94. 
Seely  v.  Birdsall,  282. 
Short  V.  Hubbard,  262. 
Sheffield  v.  Radcliflfe.  224. 
Sherwood  v.  Reade,  224,  146. 
Sherman  v.  Dodge,  224. 
Sharpless  v.  Mayor,  368,  369,  415,  416, 

81. 
Sheup  V.  Spier,  146,  224,  412. 
Shepherd  v.  The  People,  192. 
Shelby  v.  Gay,  196,  354. 
Sill  V.  Corning,  340,  362.  368,  369. 
Sills  y.  AVarwick,  94,  98. 
Sims  V.  Irvine,  353. 

"     v.  Hundley,  354. 
Silver  Lake  Bank  v.  Hardings,  359. 
Sidaway  V.  Hay,  94,98. 
Sixth  Avenue  RR.  Co.  v.  Kerr,  382. 
Slayton  v.  Hulings,  224. 
Smith  y.  Schriver,  353. 


xxu 


TABLE  OF  CASES. 


Smith  v.CoTulry,  19G. 
"      V.  Moflfat,  247. 
•'      V.  Lockwood,  275. 
««      V.  Strong,  53. 
"      V.  Buchuuuan,  94,  98. 
"      V.  Mayor  of  New  York,  lOG. 
"      V.  Bryan,  400. 
"      V.  Turner-,  460. 
"      V.  Wilcox,  4C6. 
««      V.  Smith,  483. 
Snyder  v.  Snyder,  145. 

V.  Wise,  359. 
Snell  V.  Bridgwater  &  Co.,  273. 
Speer  v.  School  Directors,  111. 
Spiers  v.  Parker,  120. 
Spicer  v.  Cooper,  177. 
Sprague  v.  City  of  Worcester,  394. 
Specht  V.  Commonwealth,  4GG,  5u4. 
Striuson  v.  Pond,  245. 
Stryker  v.  Kelly,  14G,  224,  412. 
Stradliug  v.  Morgan,  190. 
Stanton  v.  University  of  Oxford,  110, 

117. 
Stocking  V.  Hunt,  1G4. 
Stephenson  V.  Doe,  55. 
Stein's  Case,  95. 
Stowell  V.  Zouch,  188. 
St.  John  V.  Chew,  19G. 
Stevens  v.  Middlesex  Canal,  387. 
Stone  V.  Mayor  of  N.  Y.,  445,  449. 
"*'     V.  Cooper,  550. 
"     V.  The  Mayor,  371. 
StUJ'^-esant  v.  The  Mayor  of  N.  Y.,  451. 
Stitwell  V.  Kaynor,  463. 
Story  V.  Fnrman,  472. 
State  of  New  Jersey  v.  Wilson,  478. 
State  V.  Barnhard,  507. 
"    V.  Bendergrass,  519. 
"    V.  Burnham,  544. 
"    V.  McLean,  226. 
Stanley  V.  Webb,  548,  549. 
Stockdale  v.  Hemsard,  548. 
Stuart  V.  Laird,  657. 
Sternburgh  v.  Bertran,  512. 
Stacey  v.  Nelson,  199. 
Stocker  v.  Warner,  207. 
Stewart  V.  Slater,  223. 
Strong  V.  Stebbins,  246. 
St.  Peters,  York,  Dean  «fc  Ch.  v.  Middle- 
borough,  261. 
Stearns  v.  United  States,  353. 
Starkwether  v.  Loomis,  359. 
Stephenson  v.  Bannister,  360. 
Stewart  v.  Gray,  3G0. 
Sturgis  V.  Crowninshield,  472,  475,  476, 

477,  672,  118,  350. 
Supervisors  of  Niagara  v.   The  People, 

146. 
Sudbury  &  Erie  EE,.  Co.  v.  Cooper,  61. 
Sun  Mutual  Ins.  Co.,  104. 
Surtees  V.Ellison,  160. 
Sullivan  V.  Brewster,  1G4. 


Suydam  v.  Wilkinson,  196,  198. 
Sumner  v.  Hicks,  196,  352. 
Supervisors  v.  United  States,  220. 
Sweet  V.  Hulburt,  415. 
Swift  Y.  Tyson,  198,  352. 

T 

Talbot  V.  Simpson,  145,  185. 
Taylor  v.  Blair,  150. 

"       V.  United  States.  251. 
"       V.  Carpenter,  359. 
"       v.  Porter,  373,  376,  396,  399,  430. 
Thatcher  v.  Dartmouth  Bridge,  387. 

V.  Powell,  196,  353. 
The  Warden  of  St.  Pauls  v.  The  Dean, 

223,  218. 
The  Bishoi^s  Case,  159. 
The  Dean  of  Ely  v.  Bliss,  155. 
The  King  v.  Airey,  150. 
The  Protector  v.  Ashfield,  123 . 
The  Chancellor  of  Oxford's  Case,  147. 
The  Prince's  Case,  148. 
The  City  of  London  v.  Wood,  150. 
The  Irresistable,  157. 
The  Fashion  v.  Ward,  179. 
The  Hunter,  183. 
The  Case  of  Fines,  182. 
The  Stafford  Justices,  188. 
The  Harriet,  189,  245. 
The  Forrester,  180. 
The  Providence  Ins.  Co.,  223. 
The  Salpetre  Case,  449. 
The  Enterprise,  245. 
The  Queen  v.  King  and  Amr.,  252. 
The  Clarence  PiailwayCo.  v.  Great  N.  of 

England  Junction  RR.  Co.,  270. 
The  Society  for  the  Propogation  of  the 

Gospel  v.  Wheeler,  353. 
The  Independence,  354. 
The  State  v.  Slade,  359. 
The  Boston  &  Roxbury  Milldam  Corpo- 
ration V.  Newman,  380. 
The  Railroad  Bridge  Co.,  426. 
The  Cincinnati,   &c.,   RR.  Co.  v.  Com- 
missioners of  Clinton  Co.,  426. 
The  Derby  Turnpike  Co.  v.  Parks,  478. 
Thomas  v.  Walker,  93. 
V.  Hatch,  198. 
"        V.  Robinson,  359. 

V.  Leland,  412,  425,  426. 
"        V.  Croswell,  548. 
Thompson  V.  Howe,  160. 
' '  V.  Sergeant,  223 . 

V.  Philips,  353. 
"  V.  Lee  County,  422. 

V.  State,  483. 
Thorn  V.  Blanchard,  542. 
Thorpe  v.R.  &  B.  RR.  Co.,  451,  456. 
Thorpe's  Case,  613. 
Todd  v.  Kerr,  483,  486. 


TABLE  OF  CASES. 


xxm 


Toleu  V.  Tolen,  482. 

Torriugton  V.  Haregraves,  110,  117,  ICO. 

Torry  v.  Milbury,  225. 

Tookcr  V.  Thompson,  359,  300. 

Towusend  v.  Brown,  111). 

Tolson  V.  KaKO,  148. 

Tracy  v.  Snydliam,  148. 

Trist  V.  Cubeuas,   104. 

Trigg  V.  Conway,  300. 

Troy  &  Boston  EK.    Co.   v.    Northern 

Turnpike  Co.,  393. 
Trustees  of  Cuyahoga  v.   McKaughey, 

105. 
Twenty-eight  Casks  of  Wine,  251. 
Twine's  Case,  202. 
Tyte  V.  Glowden,  254. 


u 


United  States  v.  Porte,  54. 

"      V.  Amedy,  58,  358. 
"  "      V.  Johnson,  58. 

"  "      V.  Balmer,  102. 

"      V.  Fisher,  102,  143. 
"      V.  Webster,  108,  205. 
"  '•      V.  Pickson,  118. 

"      V.  Babbitt,  145. 
"  "      V.  Hewes,  151. 

"  "      V.  Case   of  Hair  Tencils, 

155,  228. 
"  •'      V.  Mann,  157. 

"  "      V.  Passamore,  157. 

"      V.  Bright,  179. 
"  "      V.  Warner,  179. 

"  "      V.  The  llecorder,  179. 

"      V.  Bassett,  188. 
«'  "      T.  llerves,  189. 

"V.  Sarchett,  190. 
"  '*      V.  Twenty-lour  Coils  Cor- 

dage, 190. 
<<  <<      y_  "VVegglesworth,  190. 

"      V.  Colm,  191. 
"      V.  Hann,  199. 
♦'  "      V.  Ten  Cases   of  Shawls, 

199,  245,  240,  292. 
"  "      V.  Freeman,  201. 

"  "      V.  Sharp,  210. 

"      V.  Moore,  213. 
"  "      V.  Dichron,  214. 

United  States  Trust  Co.  v.   U.  S.  Fire 

Ins.  Co.,  222. 
United  States  v,  Winn,  245. 
"  "      V.  Wilson,  245. 

"  "      V.  Wilberger,  245. 

"  "      V.  Ragsdale,  245. 

"  "      V.  Morris,  245. 

"  "      V.  Probasco,  251. 

"  "      V.  Irvin,  272. 

"  "      V.  Jones,  273. 

'•  "V.  Bailroad   Bridge,   292, 

377,  420. 


United  States  v.  More,  351. 
"  "      V.  Hart,  352. 

"      V.  Kathbone,  352. 
«'  "      V.  Morrison,  353. 

"      V.  Mandel,  353. 
"  "      V.  Backus,  354, 

"  "      V.  Iteid,  354. 

"      V.  Mundell,  354. 
"  "      V.  Johns,  358. 

Upton  V.  Northbridge,  512. 
Updegraff  V.  Commonwealth,  559,  5G1. 
Usher  v.  Leverauce,  549. 


Van  Home  v.  Dorrance,  145,  185,  242, 

257,  337,  390,  403. 
Van  Rensselaer  v.  Snyder,  155,  472,  473. 

"  "  V.  Livingston,  103. 

"  "  V.  Kearnej',  353. 

Van  Schaick  v.  Edwards,  240. 
Van  Wormer  v.   Mayor  of  Albany,  U.7. 
Van  Wyck  v.  Aspinwall,  542. 
Vandcrcar  v.  Hen.  <t  Sar.  HE.  Co.,  158. 
Vanderpool  v.  Allen,  288. 
Vanderbilt  v.  Adams,  458. 
Varick  v.  Smith,  375,  450. 
Vedder  v.  Alkenbrack,  103. 
Vernon's  Case,  235,  292. 
Vidal  V.  Girard,  559. 
Vischer  v.  Vischer,  482,  483. 
Voorhees    and    Wife    v.    Presbyterian 

Church  of  Amsterdam,  287. 
Voorhees  v.  Bank  of  United  States,  119. 

"        V.  Voorhees,  55. 
Vrooman  v.  Jones,  02. 

"W 

Wallis  V.  Hodson,  191. 
Walwin  v.  Smith,  252. 
Walker  v.  Sherman,  288. 

"       T.  Earl  Grosvenor,  644. 
Waltz  V.  Waltz,  483. 
Waller  v.  Harris,  144,  184,  193. 
Wallace  v.  Bassett,  156. 
Walter  v.  Bacon,  105. 
Waring  V.  Jackson,  190,  353. 
Warner  v.  Hadner,  247. 
Warno  v.  Varley,  249. 
Wardv.  Snell,  254. 
Waterhouse  v.  Kean,  256,  286. 
Watson  V.  Tarpley,  354. 
Way  man  v.  Southard,  354. 
Warren  v.  Flagg,  359. 

V.  Windle,  159. 
Warren  Manufac.  Co.  v.  Aetna  Lis.  Co., 

163,  300. 
Wager  v.  Troy  &  Union  ER.  Co.,  375, 

377. 


XXIV 


TABLE   OF  CASES. 


"Warrender  v.  Warrencler,  06. 
Waterlord  <.t  "Whitehall  Turnpike  Co .  v . 

The  People,  126,  143,  IS'J. 
Webster  v.  Freuch,  226. 

"       V.  Cooper,  353,  IGo. 
Webb  V.  The  Manchester  &  Leeds  EE. 

Co.,  258. 
Webb  V.  riomer,  177. 
Wernbish  v.  Tallboys,  23 i. 
Weston  V.  City  of  Charleston,  350. 
Westervelt  v.  Lewis,  360. 

V.  Gregg,  396,  436,  16G,  430. 
West  Eiver  Bridge  Co.  v,  Dix-,  372,  382. 
Wells  V.  Somerset,  382. 
Weeks  v.  The  Citv  of  Milwaukie,  426. 
Weil  V.  Schultz,  455. 
Well  man's  Case,  158. 
White  V.  How,  61. 
Wheatlv  T.  Daniel,  218. 
Whiting  V.  Sheboygan  EE.  Co.,  426. 
Whitmore  v.  Bedford,  236. 
Whittnker  v.  Bramson,  360. 
Wheelock  v.  Young,  3S2. 
Wiseman  v.  Colton,  101. 
Willison  V.  Watkins,  148. 
Wills  V.  Wilkins,  102. 
Williams  V.  Williams,  102,  107. 

V.  Pritchard,  110,  117. 

v.  Potter,  155,  150. 

V.  Wilcox,  206. 

V.  Buckley,  237. 
"         V.  Sangar,  256. 

V.  N.  Y.   Cent.  EE.   Co.,  375, 
377. 
Wiesler  v.  Hade,  368,  369. 
Winchester's  Case,  231. 
Winchcourt  v.  Winchester,  250. 
Wilcox  V.  Jackson,  353. 


Wilcox  V.  Wilcox,  482. 

Williamson  v.  Berry,  354. 

Wilson  V.  The  Blackbird  Marsh  Creek 

Co.,  378. 
Wilson  V.  Mayor  of  New  Y'ork,  425. 
Wittiers  v.  Buckley,  400. 
Wires  v.  Farr,  165. 
Wigg  V.  United  States,  200.     • 
Wilkinson  v.  Leland,  429,  489. 
Willis  V.  Long  Island  EE.  Co.,  433. 
Wood  V.  United  States,  155. 

"      V.  Oakley,  163. 

"      V.  Adams,  208. 

"      V.  Chapin,  222. 
Woodworth  v.  Spring,  486. 
AVoodgate  v.  KnatchbuU,  254. 
Woolsey  v.  Dodge,  353,  354. 
Woart  V.  Winnich,  164. 
Wolfkill  V.  Mason,  164. 
Wolcottv.  Pond,  231. 
Worseley  v.  Demattos,  242. 
Wyman  v.  Southard,  1 1 8. 
Wyndham  v.  The  People,  395,  405,  431, 

437,  441,  442. 
Wynshamer  v.  The  People,  450,  470. 


Yates  V.  Yates,  483. 
Young  V.  Bank  of  Alexandria,  54. 
"       V.  Beardsley,  69. 


z 

Zouch  V.  Stowell,  179,  234 


k  GENE1{AL  TKEATISE  ON  STATUTES. 


CHAPTER    I. 

INTRODUCTORY  COMMENTARY. 

OF  THE  DEFINITION  OF  STATUTES,  ANCIENT  AND  JIODEKN.     THEIB 
ORIGIN,  INCIDENTS,  &c. 

Statute  L.vws,  their  definition,  origin,  manner  of  enactment, 
forms,  authentication,  promulgation,  force,  intei-pretation,  limita- 
tions, variety  and  incidents,  are  the  subject  of  this  work.^ 

History,  as  well  as  experience,  has  taught  us,  that  in  every  civili- 
zed community,  however  high  or  low  it  may  rank  in  the  scale  o 
intelligence,  there  is  an  absolute  necessity  for  the  existence  of  a 
power  for  the  administration  of  justice.  This  necessity  is  so  abso- 
lute and  indispensable,  that  all  social  institutions,  whatever  may  be 
then-  object,  seek  to  provide  some  recognized  authority  to  admin- 

NoTE  1. — "Whilo  the  dcsigu  of  this  woik  is  to  present  to  the  profession,  an 
American  treatise  on  statutes  and  constitutional  law,  the  labor  assumed,  is  greatly 
relieved,  and  the  performance  of  the  duty,  (it  is  believed)  more  satisfactorily  dis- 
charged, by  adopting,  as  far  as  it  is  practicable,  a  work  of  approved  and  stand- 
ard authoritj',  in  all  the  courts  of  England  and  America,  upon  the  subject  of 
statutes.  There  is,  pei-haps,  no  writei-,  in  either  country,  whose  work  upon  the 
construction  of  statutes,  has  been  more  universally  regarded  by  the  courts  and 
bar,  as  authority,  than  the  "Treatise  upon  Statutes,  by  Sir  Fortunatis  Dwarris, 
Kut.  B.  A.  of  Oxford,  F.  R.  S.,  F.  S.  A.  of  England."  The  text  of  this  author,  in  that 
part  of  his  treatise,  which  has  application  to  statutes  generally,  will  be  adoj^ted 
in  this  work.  This  will  supplj'  an  almost  importunate  demand  by  the  profes- 
sion, for  a  republication  in  America,  of  that  standard,  and  greatly  desired  work. 
To  this  original  of  Dwarris,  will  bo  added  by  original  text,  and  also  by  notes  of 
authority,  such  views  of  American  law  on  the  construction  of  statutes,  as  can  be 
brnught  within  the  scope  of  the  work,  with  American  authority  upon  Constitu- 
tional limitations,  and  legislative  powers  ;  and  also,  views  of  construction  upon 
such  subjects  of  statute  law  as  have  no  existence  in  England,  or  such  as  remain 
untouched  by  the  English  author,  with  a  chapter  upon  parliamentary  law  and  the 
law  of  parliamentary  privilege. 
5 


d-1  INTEODUCTOEY  COMMENTAEY. 

ister  justice.  It  requii-cs  imifoi-m  rules ;  rules  ■wliicli  sliaU  he 
piomulgated,  and  kno-uTi  by  all  the  members  of  such  social  com- 
mimitj.  It  becomes  a  necessity,  which  lies  at  the  foundation  of 
all  ci^■il  society,  otherwise,  each  individual  of  the  community 
would  attempt  to  administer  justice  for  himself. 

These  uniform  rules,  so  adopted  by  a  commvmity,  are  to  a  gTeat 
extent,  the  rules  of  conduct  by  which  its  members  are  to  be  gov- 
erned, and  are  therefore  denominated  its  laws ;  and  laws  are 
regarded  as  the  rules  of  right ;  as  the  measure  of  justice  between 
man  and  man  ;  and  are  generally  found  existing  to  a  greater  or 
less  extent  in  an  authentic  form,  either  "VNTitten  or  printed.  But, 
in  order  to  give  binding  force  to  laws,  nothing  is  more  certain 
than  the  indispensable  necessity  of  Government.  And  it  is  equally 
undeniable,  "  that  wherever  and  howsoever  goveiTiment  is  institu- 
ted, the  people  must  cede  to  it  some  of  their  natural  rights,  in 
order  to  vest  it  with  requisite  powers."  a 

Government,  imphes  the  power  of  making  laws.  It  is  essential 
to  the  idea  of  a  law,  that  it  be  attended  with  a  sanction  ;  or  in 
other  words,  a  penalty  or  punishment  for  disobedience.  If  there 
be  no  penalty  annexed  to  disobedience,  the  commands  which  pre- 
tend to  be  laws,  will  in  fact  amount  to  nothing  more  than  advice 
or  recommendation.  This  would  not  be  government.  Among 
the  necessary  powers  of  government,  is  that  of  legislation,  which 
is  the  power  in  the  government  to  make  laws,  not  only,  but  to 
make  the  lavrs  so  made,  the  means  of  executing  the  legislative 
power. 

*'  A  law  by  the  very  meaning  of  the  term,  includes  supremacy. 
It  is  a  rale,  which  those  by  whom  it  is  presented  are  bound  to 
observe.  This  results  from  every  poKtical  association.  If  indi- 
viduals enter  into  a  state  of  society,  the  laws  of  that  society  must 
be  the  supreme  regulator  of  their  conduct.  If  a  number  of 
pohtical  societies  enter  into  a  larger  political  society,  the  laws  which 
the  latter  may  enact  pursuant  to  the  powers  entrusted  to  it  by 
the  terms  of  the  compact,  or  constitution,  must  necessarily  be 
supreme  over  the  societies  so  united,  and  over  the  individuals  of 
which  they  are  composed.  It  would  otherwise  be  a  mere  treaty, 
dependent  upon  tlie  good  faith  of  the  parties,  and  not  a  govcrn- 

a  Fudcralist,  Letter  2. 


IIsTnODUCTOrA'   COMMENTAT.y.  35 

niciit,  wliicli  is  oiil}-  another  word  for  political  power   and  supre- 
macy," (I. 

The  gi-eat  aim  and  object  then,  of  the  pohtical  institution  called 
government,  is  to  provide  for  the  safety  and  happiness  of  the 
society,  and  the  individual  members  of  which  it  is  composed,  and 
justice  is  the  end  to  be  secured.  It  is  government  that  secures  tlie 
weaker  against  the  violence  and  oppression  of  the  stronger,  and 
secures  itself,  by  the  possession  of  the  power  conferred  by  all. 

When  laws  are  made,  and  promulgated  in  their  most  authorita- 
tive form,  namely,  by  legislation,  they  are  then  denominated  stat- 
utes. Other  authorities  of  law,  arc  usages  and  'customs  ;  these 
are  supposed  to  be  based  upon  the  precepts  of  natural  right,  and 
are  also  intended  to  l)e  the  measure  of  justice. 

Statute  law,  b}'  American  definitions,  is  an  act  which  is  pre- 
scribed by  the  legislature,  or  supreme  power  of  the  State ;  it 
extends  its  binding  force  to  all  the  citizens  or  subjects  of  that 
State,  h 

This  definition,  applies  as  well  to  the  State  in  its  national 
capacity,  as  to  the  several  sovereign  states,  whose  union  compose 
the  national  body  politic.  These  statutes,  State  and  National, 
are  equally  the  expressions  in  writing,  of  the  sovereign  or  legisla- 
tive will,  known  in  ancient  and  elementary  law  books,  as  "leges 
Scripta," c  or  written  laws,  as  distinguished  from  the  ''leges  non 
Scri'pta"  the  unwritten  or  common  law.  The  latter,  owe  their 
binding  force  to  the  principles  of  justice  as  declared  by  the  coiu'ts, 
and  to  long  usage  and  consent  of  the  nation,  or  people.  The 
former,  to  the  positive  command  or  declaration  of  the  supreme 
power. 

Statute  law,  in  a  repubUcan  form  of  government,  is  commonly 
apphed  to  the  acts  of  a  legislative  body,  consisting  of  representa- 
tives chosen  by  the  people.  In  monarchies,  they  are  the  written 
will  of  the  sovereign  power,  whether -expressed  by  absolute  will  of 
the  king  alone,  or  by  a  union  of  wills,  of  king,  nobles  and  com- 
mons, when  the  commons  act  in  a  representative  character. 
"When  expressed  by  the  king  alone,  they  are  sometimes  called 
edicts,  decrees,  ordinances,  rescripts,  d:c. 

a  Federalist,  No.  31.  h  1  Kent  Com.  417  ;  2a  iil.  150. 

c  1  Black  Com.  85. 


36  INTKODUCTOrvY  COMMENTAEY. 

Statutes  are  of  both  Diviue,"  and  human  origin  ;  the  former, 
having  God,  the  latter  man  for  their  authority. 

It  is  not  within  the  scope  or  object  of  this  work  to  discuss  the 
question  of  tlie  true  origin  of  governments  in  either  then'  ethical 
or  pohtical  bearing ;  nor  whether  governments  are  based  upon 
divine  or  human  authority,  but  only  assume  that  every  duly  orga- 
nized government  possesses  the  power  to  ordain  and  estabhsh  the 
laws  by  which  its  subjects  shall  be  controlled ;  and  confine  this 
treatise  chiefly  to  the  subject  of  the  "svTritten  or  statute  laws. 

The  municipal  laws  of  nations  and  of  communities,  are  there- 
fore, in  their  origin  and  intrinsic  force,  no  other  than  the  rules  of 
being,  given  to  man  by  God.  But  as  the  heavenly  wisdom  must 
flow  through  the  impure  channel  of  humanity,  it  is  necessarily 
mingled  with  the  provisions  of  human  invention,  and  there  must 
necessarily  be  some  conflict  with  the  primary  perfection.  Indeed, 
the  divine  rule  itself,  provides  for  human  modifications.  So  that 
laws  may  be  adapted  to  the  particular  circumstances,  views,  and 
vv^ants  of  the  subjects  to  whom,  and  to  whose  interests  they  are  to 
be  applied,  and  whether  human  modifications  accord  with  the 
original  right  and  perfection  or  not,  they  are  ahke  j^G'^^^'^'f^ific^i  as 
laws  ;  and  become  so  essential  to  human  association,  that  men 
cannot  live  in  communities  without  them. 

Human  laws,  which  are  intended  to  be  an  approach  toward  the 
perfection  and  majesty  of  the  law  of  God,  are  entitled  to  a  corre- 
sponding dignity  and  respect ;  they  are  entitled  to  the  strongest 
affection  ;  and  should  be  enshrined  in  the  hearts  of  a  people  who 
are  the  subjects  of  tlie  government,  and  whose  pubhc  sentiment 
they  are  supposed  to  express.     They  cannot  be  held  in  too   high 

Note  2. — "Because  they  had  not  executed  my  judgments  ;  but  bad  despised  my 
staiu^es  ;  and  had  i^olluted  my  Sabbaths,  and  their  eyes  were  after  their  fathers 
idols.  Whereiore  I  gave  them  statutes,  also  that  were  not  good."  Ezekiel  20,  24. 
If  the  wicked  restore  the  jiledge,  give  again  that  he  had  robbed,  walk  in  the 
statutes  of  life  without  committing  iniquity,  he  shall  surely  live,  he  shall  not  die . 
Ezekiel  33,  15.  The  statutes  of  the  Lord  are  right,  rejoicing  the  heart.  Psalms 
19,  9.  Thou  comest  down  also  upon  Mount  Sinai,  and  si:)eakest  with  them  from 
Heaven,  and  gavest  them  right  judgements,  true  laws,  good  statutes  and  com- 
mands ;  and  madest  known  to  them  thy  holy  Sabbath,  and  commanded  them  pre- 
cepts, statutes  and  laws  by  the  hand  of  Moses  thy  servant,  Nehemiah  9,  13,  14. 
See  also  Exodus  15,  26.  Deut.  6,  17  ;  2  Kings  17,  15  ;  1  Chron.  29,  19  ;  Micah 
6,  16  ;  Psalms  18,  22  :  Id.  119,  12,  1(5,  23,  20,  33,  54,  G4,  G8,  71,  117. 


INTRODUCTORY  COMMENTARY.  37 

honor,  or  too  jealously  guarded  and  preserved,  as  the  safeguard 
of  all  peace  and  security. 

It  is  certain  that  no  human  authority  can  rightfully  mfiiDgc  or 
abrogate  the  smallest  particle  of  natural  or  divine  law  ;  and  yet  wo 
cannot  expect  that  all  acts  of  legislators  will,  or  can  be,  entirely 
good,  or  ethically  perfect ;  but  if  their  goodness  and  bmdmg 
quality  in  this  respect,  is  to  be  determined  by  the  subjects  upon 
whom  they  are  intended  to  operate,  government,  and  subordina- 
tion would  cease  ;  there  must,  therefore,  be  magistrates  clothed 
^nth  the  power  to  enjoin  their  autliority. 

When  therefore,  the  supreme  jjower  of  a  community  decrees 
anything  which  may  even  be  injurious  to  one,  or  to  a  few  of  its 
subjects,  it  is  their  duty  to  acquiesce,  and  not  to  disturb  the  peace 
of  society ;  attempt  to  subvert  the  constitution  of  their  coun- 
try, or  to  diminish  the  veneration  for  its  laws,  which  would  bo 
bringing  a  greater  evil  upon  the  whole  community. 

This  expresses  what  is  generally  understood  to  be  the  signifi- 
cation of  law,  to  wit :  "A  nile  of  action  dictated  by  some  supe- 
rior being."a  It  will  therefore  be  our  duty  in  this  work  to  con- 
sider only  human  laws  so  dictated.  Justinian,  the  gi-eat  law-giver, 
reduced  the  prmciples  of  law  to  three  general  precepts.  First,  that 
we  should  Uve  honestly.  Second,  that  Ave  should  hui-t  nobody. 
And  third,  that  we  should  render  to  every  one  his  due.  h  This 
includes  the  whole  doctrine  of  the  law. 

Statute  law,  is  sometimes  by  law  writers  included  in  the  more 
general  term,  "Municipal  Law,"  though  this  extends  it  to  states 
or  nations.  But  it  is  well  defined  by  Blackstono,  mider  the  head 
of  mimicipal  law,  as  bemg  "  a  rule  of  civil  conduct  prescribed  by 
the  supreme  power  in  a  state,  commanding  w^hat  is  right,  and 
prohibiting  what  is  wrong."  c  Municipal  laAv,  in  its  technical 
meaning,  also  rests  for  its  authority  upon  judicial  decisions,  d 

But  Chancellor  Kent  has  given  a  more  accurate  definition  of 
mmiicipal  law.  He  says :  "  It  is  composed  of  wjitten,  and 
unA\Titten,  or  of  statute  and  common  law.  Statute  law  being  the 
express  written  will  of  the  legislature,  rendered  authentic  by  cer- 
tain prescribed  forms  and  solemnities."e     Statute  law  becomes 

a  1  Black,  Com.  39.  v.  1  Com.  44. 

h  2  Just.  1,  13.  d  2  Kent's  Com.  -koC. 

c  1  Com.  447. 


38  UsTFlODUCTOEY  commentahy. 

iinuiicipal,  wlieu  its  force  is  confined  to  a  particular  community, 
district  or  State. 

It  may  be  said,  that  a  nations  progress  in  morality,  philoso- 
phy, letters,  arts,  science,  trade  and  commerce,  civilization  and 
refinement,  may  be  jDretty  accurately  ascertained  from  their 
written,  or  statute  laws.  Their  spuit,  should,  and  doubtless 
does,  enter  into  the  language  in  which  they  are  drawn.  Just  in 
proportion  as  these  laws  are  grounded  in  natural  justice,  and 
speak  a  language,  evincing  moral  and  intellectual  progi'ess,  they 
exalt  and  adorn  the  character  of  her  people. 

In  our  own,  as  in  every  system  of  jurispradence,  the  statute 
law  forms  but  a  part  of  the  law  of  the  system  ;  and  it  may  be 
safely  asserted,  that  no  system  of  jurisprudence  would  be  perfect, 
that  should  be  confined  to  legislative  enactments.  It  is  not  with- 
in the  power  of  the  human  mind,  or  in  any  combination  of  minds, 
to  foresee  and  provide  rules  beforehand,  to  regulate  the  conduct 
of  men  in  ever}'  change  and  variety  of  circumstances  and  condi- 
tions, so  that  when  individuals  neglect,  or  violate  rules  thus  pre- 
scribed, the  departure  from  right,  finds  its  exact  description,  and 
finds  a  recognized  laile  to  be  apphed  to  it,  which  shall  restore  the 
legal  relations  of  the  parties. 

Therefore  it  follows,  that  the  laws  of  every  community,  con- 
sists of  two  elements.  First,  those  rules  of  conduct  which  are 
introduced  by  the  law  making  power  in  an  express  and  positive 
form  ;  which  control  the  particular  cases  and  circumstances  to 
which  they  relate  or  describe,  and  which  are  called  statutes,  made 
by  legislation;  and  Second,  those  precepts  of  natural  r^ght 
which  are  not  superceded  by  statute  law,  and  vrhich,  there- 
fore, remain  in  fuU  force  as  to  all  other  circumstances  'c-A\d 
cases,  and  which  forever  continue  in  force  as  the  measure  of  jus- 
tice until  superceded  or  changed  by  legislation ;  and  while  \v 
force,  controlled  by  the  rudiments  of  legal  science  and  the  pro- 
foundest  of  human  wisdom  and  experience,  remain  at  all  times' 
the  highest  s'ecurity  and  ])rotection  of  the  citizen. 

Perhaps  in  no  feature  of  a  nation's  character,  more;  than  in  her 
Avritten  laAVS,  is  her  moral  and  industrial  character  made  Uiani- 
ifest.  They  mthcate  the  progress  of  her  civihzed  development  by 
their  relative  fitness  and  simplicity  ;   and  they  afford  materials 


INTRODUCTOllY  COMMENT AKY.  30 

for  forming  a  judgment  as  to  licr  lettered  skill  and  intellective 
wisdom.  Next  to  inspired  revelation,  the  book  which  contains  a 
nations  laws,  is  most  important.  From  this,  the  citizen  learns  the 
extent  of  his  rights,  and  the  nature  of  his  pohtical  and  social 
duties.  In  a  country  which  has  adopted  it  as  one  of  its  maxims, 
tliat  "  ignorance  of  law  excuses  nobody,"  it  should  be  the  aim  of 
the  lawmaker,  that  its  statutes  should  be  drawn  in  language  clear 
and  simple ;  that  their  meaning  should  bo  plain  and  unmistaka- 
ble ;  and  if  ambiguity  or  doubt  do  seem  to  appear  ;  its  maxims 
and  i-ules  of  mterpretation  should  be  formed  in  the  soundest  wis- 
dom. 

Of  all  the  degrees  of  authority  which  man  exercises  over  man, 
that  of  legislation  is  the  most  august  and  supreme.  Statutes,  gen- 
erally, are  made  in  affirmance  of  natural  rights  and  duties,  and 
are  declarative  of  them.  Sometimes,  they  are  positive  regula- 
tions for  political  reasons,  for  matters  otherwise  in  themselves 
indififerent.ft  In  an  early  stage  of  civil  society,  when  laws  were 
few  and  defective,  and  the  execution  of  them  feeble  and  precari- 
ous, much  was  necessarily  left  to  the  authority  of  the  sovereign 
power ;  and  this  sovereign  power  was  the  king,  who  not  only  in- 
terpreted and  administered  the  laAv,  but  explained  and  adopted  it 
as  a  remedy  to  an  existing  case.  Sometimes  lords  and  prelates 
were  called  in,  to  aid  in  dehberation,  when  the  king  was  over- 
tasked, but  all  petitions  for  rehef  were  then  usually  addressed  to 
the  king. 

^  It  was  soon  felt  to  be  too  much,  "  that  the  king  should  make,  or 
even  alter  laws  of  his  own  mere  pleasiu-e,  to  suit  his  own  private 
purposes,"/;  It  began  first  to  be  disputed,  when  the  laws,  or  the 
alterations  thereof,  affected  imfavorably  the  persons,  or  estates  of 
the  great  barons,  but  it  now  excites  no  surprise,  that  in  this  rade 
age,  the  limits  of  executive,  legislative  and  judicial  authority 
were  left  undefined,  as  they  were  all  alike  combined  in  the  person 
of  the  sovereign ;  and  it  is  believed  that  it  was  the  love  of  pomp 
and  parade  ;  a  desire  to  increase  his  supports  in  this  display  ; 
and  to  gratify  this  pride,  that  induced  the  sovereign  to  call  these 
great  chief  barons  mto  a  coimcil,  or  parliament.  But  the  origin 
of  parliaments  is  not  a  part  of  this  work. 

a  1  Smith's  Com.  Cha.  1  &  5.  6  1  Reeve's  History  of  English  Laxr,  85, 


40  INTRODUCTORY   COMMEXTAEY. 

lu  an  American  treatise  upon  statutes,  it  will  not  be  practically 
useful  to  devote  much  space  in  giving  the  origin,  or  in  tracing 
the  history  and  progress  of  the  statute  laws  of  England,  though 
it  is  fi'om  that  country  that  many  of  our  statutes  are  borrowed  ; 
and  it  may  indeed  be  conceded,  that  many  of  our  wisest  enact- 
ments are  found  to  bo  nearly  accurate  transcripts  of  English 
statutes. 

Though  modern  Eughsh  writers  now  concur  in  definii)g  their 
statutes  to  be  "  the  written  will  of  Parliament,  composed  of  King, 
(Queen)  Lords  and  Commons,"  it  has  been  a  cpicstion  greatly 
mooted  in  history,  as  to  the  period  of  time  when  statutes,  that 
are  now  expressly  held  to  be  such,  were  first  passed  in  that  coun- 
try. The  earhest  statutes  extant  m  j.)r/»te?  hoohi,  are  those  of 
Henry  III.  a.  During  those  of  this  reign,  are  Afagna  Charta,  and 
Charta  de  Fovesta. 

Before  that  period,  what  was  some':imos  called  statutes,  but 
more  commonly  known  by  the  name  of  ''assisr,"  or  "  (onsfifv- 
iiones,'"  were  mere  ordinances  of  the  king,  who  usually  provided  and 
ordained  them.  This  was  sometimes  done  by  the  advice  of  his 
council ;  sometimes  the  advice  and  consent  of  barons  and  dig- 
nified ecclesiastics  were  added ;  and  in  some  instances,  the  con- 
sent of  the  whole  commonalty  was  expressed,  h 

There  is  great  diversity  of  opinion  among  English  autliors,  and 
of  course,  much  uncertainty  as  to  the  fact,  as  to  the  extent  of  the 
powers  that  were  exercised  at  an  carl}'  day  by  the  Kings  of  Eng- 
land, with,  or  without  the  aid  of  parliament.  Whether  the  lords, 
spiritual  and  temporal  aided  in  framing  statutes  and  ordinances, 
or  were  merely  called  in  as  councillors  of  the  sovereign,  is  not 
quite  certain.  Ruffhead,  in  his  preface  to  the  English  statutes, 
asserts,  that  down  to  the  23d  of  Edward  the  First,  so  little  regard 
was  paid  to  the  authority  of  the  commons,  that  their  assent  was 
not  deemed  essential  to  the  passage  of  a  law  ;  and  that  Peers 
were  considered  merely  counsellors  ;  that  the  high  authority  of 
passing  laws  or  ordinances  was  exercissd  by  the  king,  or  by  the 
king  and  his  justices.  Sir  Edward  Coke,  is  of  opinion,  that  pro- 
visions made  by  two  branches  only,  of  the  legislature,  were  ordi- 
nances, and  not  statutes  ;  that  .si  a  lutes  were  designed  for  perma- 

a  Dwarris  ch  vii.     h  Id. 


INTRODUCTORY  COMMENTARY.  41 

uent  law,  and  ordinances  were  merely  temporary  experiments, 
framed  with  a  view  to  future  and  occasional  amendment,  a  l3ut 
it  appears,  that  in  the  second  year  of  Henry  the  Fifth,  the  com 
mons  being  dissatisfied  with  the  limited  influence  allowed  to  them 
l)y  the  king,  presented  to  him  a  strong  memorial,  then  claiming, 
that  it  had  ever  been  tlieir  freedom,  that  no  statute  or  law  sliould 
be  juadc  Avithout  their  assent.  To  this,  it  Avas  answered  by  the 
king,  "  that  the  king,  of  his  grace,  especially  gi-anteth,  that  from 
henceforth,  nothing  be  enacted  to  the  petitions  of  his  commons, 
contrary  to  their  asldng,  whereby  they  should  be  bound  without 
their  assent;  saving  alway,  our  Hege  lord  his  prerogative,  to  grant 
and  deny  as  he  should  please,  such  petitions."  h 

This  petition  of  the  commons,  and  the  response  of  the  king,  was 
regarded  as  a  complete  change ;  and  was  claimed  to  be  the  first  vic- 
tory on  the  part  of  the  commons.  Their  power  from  thence, 
became  an  integral  and  intlispensablo  part  of  the  legislatiu-e, 
which  they  had  long  been  laboring  to  estabhsh,  and  which  they 
now  regarded  as  firmly  consolidated  and  effectually  secured  against 
any  future  violations  of  their  legislative  rights. 

When  these  councils  became  characterized  by  the  name  of  par- 
liament, it  then  became  necessary  to  devise  a  plan  for  authenti- 
cating, preserving,  and  transmitting  their  decisions,  or  acts.  This 
was  done  by  entering  them  upon  what  was  called  the  rolls  of  par- 
liament, which  contained  an  account  of  all  proceedings,  legislative 
and  judicial.  It  was  not  until  the  reign  of  Edward  III,  that  the 
constitutional  principle  was  established,  that  the  long  and  two 
houses  of  parliament  in  conjunction,  were  required  in  the  enact- 
ment of  statutes,  and  that  they  in  conjunction,  possessed  exclu- 
sively the  power  of  legislation. 

After  the  commencement  of  the  reign  of  Henry  III,  statutes 
began  to  be  published  in  solemn  form,  with  captions,  which 
began:  "  Our  Lord  the  King,  etc.,  at  his  Parliament  holden  at, 
etc.,  by  the  advice  and  assent  of  the  Lords,  Spiritual  and  Temporal, 
and  at  the  special  request  of  the  Commons  of  the  realm  bemg  in 
the  same  Parliament,  hath  caused  to  be  made  divers  statutes  and 
ordinances,"  etc. 

A  reference,  to  this  extent,  to  these  Enghsh  statutes  and  ordi- 

a  4  Inst.  26.  b  Dwarris,  37. 

6 


42  INTKODUCTOIIY  COMJIENTARY. 

nances,  seems  to  bo  necessary,  iu  order  to  sliow  what  was  tlieir 
-vdew  of  statutes  ;  wlien  our  colonies  first  enacted  laws,  Avhile  yet 
subject  to  tlie  British  government ;  and  also,  at  the  time  of  our 
separation  fi'om  them,  and  since  ;  because  the  judicial  interpreta- 
tion given  at  that  time  by  Enghsh  law  writers  to  statutes,  was  a 
part  of  the  common  law,  which  we  also  borrowed  from  that  covm- 
try,  and  then  adopted  as  our  own ;  and  except  in  so  far  as  we 
have  wrought  changes  in  this  common  law  either  by  legislation  or 
by  finding  it  inapplicable  to  our  changed  form  of  government,  and 
substituted  changes  more  suited  to  the  condition  of  a  free 
people,  we  still  follow  in  practice,  the  interpretations  of  those 
venerated  sages  of  the  English  law  whose  mitings  we  regard  as 
standard  authority.^ 

These  law  writers,  and  also  distinguished  jurists,  inform  us,  that 
much  of  the  common  law  which  we  so  borrowed  and  adopted,  is 
nothing  else  but  ancient  statutes  and  ordinances  worn  out  by 
time ;  a  that  all  our  law  began  by  the  consent  of  the  legislature ; 
that  many  of  those  things' that  we  take  for  the  common  law,  were 
undoubtedly  acts  of  parhament,  though  not  now  to  be  found  of 
record,  h 

It  would  hardly  be  profitable  in  this  work,  nor  within  its 
design,  to  trace  the  antiquity  of  the  statutes  of  other  nations  than 
that  of  England,  for  the  reason  that  our  early  laws  are  in  a  large 
degree  copied  from  those  of  that  country,  or  adopted  into  our 
system. 

The  scholar,  or  curious  student  of  the  history  of  early  legisla- , 
tion  who  desires  further  research  into  this  branch  of  law-making 
power,  is  referred  to  the  twelve  tables  of  the  Eoman  repubHc,  to 
their  fi'equent  revisions  of  statute  laws,  and  their  forms  of  codifi- 
cation ;  especially  as  we  have  adopted  into  our  jimsprudence 
some  ideas  derived  from  the  civil  law. 

a  Wilmot,  cli.  j.  2  Wils.  E.  348. 
b  Hale's  History  of  the  Common  L:uv,  Gfi. 
Note  3.— Where  the  English  statutes  are  ado];)tcd  into  our  own  legislation,  the 
known  and  settled  construction  of  them,  by  the  courts  of  law,  is  considered  as 
silently  incorporated  into  the  acts;  or  is  received  with  all  the  weight  of  authority. 
Pennochv.  Dialogue,  2  Peters,  2.  It  is  proper,  that  the  construction  given  to 
statutes  in  the  country  where  they  have  been  enacted,  should  follow  the  same 
statutes  when  adopted  here.     Cathcart  v.  Eobinson,  5  Peters,  263. 


INTEODUCTORY  COMMENTARY.  43 

The  common  law  of  England,  as  modified  by  positive  enact- 
ment, together  with  the  statute  laws  which  were  in  force  at  tlio 
time  of  the  emigration  of  the  colonists,  became  in  fact,  the  com- 
mon law,  rather  than  the  common  and  statute  law  of  the  colony. 
The  stahdf  law  of  the  mother  country,  therefore,  when  introduced 
into  the  colony  of  New  York',  by  common  consent,  (because  it  wa.'; 
applicable  to  the  colonists  in  their  new  situation  and  nc^t  by  leg- 
islative enactment,)  bcscame  the  common  law  of  tlu;  province.rt 

Such  i)artG  of  tho  common  law,  as  with  acts  of  the  legislature 
of  the  colony  o£  New  York,  formed  the  law  of  the  colony  on  the 
19th  of  April,  1775,  which  have  not  been  altered,  continue  the 
law  of  the  State,  subject  to  alteration  by  the  legislature.  Such 
parts  0/5  are  repugnant  to  the  constitution,  are  abrogated.  Const, 
of  N.  Y.  1777  §  35 ;  Const,  of  N.  Y.  of  1822,  Ai't.  7,  §  13  ;  Const, 
of  N.  Y.  1816,  Art.  1,  §  17. 

New  statutes  in  America,  became  necessary  at  once,  upon  our 
reparation  from  the  mother  country.  The  old  customs  and  models 
of  business  in  England,  were  in  many  respects,  imsuited  to  our 
new  condition,  and  theory  of  government.  But  such  of  the 
English  statutes  as  guarded  and  secured  to  the  people  at  large, 
and  to  the  individual,  rights  against  the  usurpations  of  power, 
were  re-enacted  here,  with  but  slight  changes.  Among  these,  are 
the  Jiaheus  corpus,  the  statute  of  frauds,  the  statute  of  wills, 
etc.  The  right  of  petition,  and  bill  of  rights  were  seciu'ed  by 
the  fundamental  law,  the  wiitten  constitutions. 

The  best  English  definition  of  a  statute,  to  be  collected  from 
cpproved  authors,  is  "such  acts  as  are  made  by  the  king's 
majesty,  by  and  with  the  advice  and  consent  of  the  lords  spii'itual 
and  temporal,  and  commons  in  parliament  assembled."  This  is 
the  written  will  of  parliament. 

Our  American  statutes  are  made  by  like  solemnities  of  form, 
and  become  the  express  written  will  of  the  legislature  ;  and  they 
are  rendered  authentic  by  prescribed  constitutional  and  legal 
forms  and  requu-ements. 

While  it  is  trae  that  our  American  legislatui'es,  are  in  a  great 
degi-ee,  modelled  after  the  parhament  of  Great  Britain  ;  and,  that 
the  usages  and  customs  of  legislation  here,  are  derived  from  the 
a  Bogardus  v.  Trinity  church,  4  Paige,  498,  1  Mass.  E,  60  ;  2  id.  534. 


44  INTEODUCTORY  COMMENTARY. 

parliamentaiy,  or  common  law  of  England ;  we  are  met  at  once 
with  a  striking  contrast,  between  the  powers  which  may  be  exer- 
cised by  an  American  legislature,  and  those  which  are  exercised 
by  the  British  parliament. 

"  The  authority  of  the  Enghsh  parhament,  in  the  enactment  of 
laws  has  no  bounds ;  it  is  transcendant.  It  is  possessed  of  sov- 
ereign and  imcontrollable  power."  By  the  constitution  of  that 
kingdom,  this  power,  which  is  there  despotic,  runs  without  hmit, 
and  rises  above  all  control.  The  vahdity  of  an  act  of  parliament 
cannot  be  di-awn  in  question  by  the  judicial  department."  a 

"  It  hath  (says  Sir  Wm.  Blackstone)  sovereign  and  uncontrolla- 
ble authority  in  the  making,  confirming,  enlarging,  restraining, 
abrogating,  repealing,  reviving  and  expounding  of  laws,  concern- 
ing matters  of  all  possible  denominations,  ecclesiastical  or  tem- 
poral, civil,  military,  maritime  or  criminal.  This  being  the  place 
where  that  absolute  despotic  power,  which  must  in  all  govern- 
ments reside  somewhere,  is  entrusted  by  the  constitution  of  these 
kingdoms.  All  mischiefs  and  gTievances,  operations  and  remedies, 
that  transcend  the  ordinary  course  of  the  laws,  are  within  the 
reach  of  this  extraordinary  tribunal.  It  can  regulate,  or  new 
model  the  succession  to  the  crowoi ;  as  was  done  in  the  reign  of 
Henry  YIII,  and  Wilham  III.  It  can  alter  the  established  reh- 
gion  of  the  land  ;  as  "was  done  in  a  variety  of  instances  in  the 
reign  of  Henry  YIII,  and  his  three  childi'en.  It  can  change  and 
create  afresh,  even  the  constitution  of  the  kingdom,  and  of  the 
parliaments  themselves ;  as  was  done  by  the  act  of  union,  and 
the  several  statutes  for  triennial  and  septennial  elections.  It  can, 
in  short,  do  everything  that  is  not  naturally  impossible ;  and  there- 
fore, some  have  not  scrupled  to  call  its  power  by  a  figure,  rather 
too  bold ;  the  omnipotence  of  parliament."  h 

Though  they  boast  of  a  constitution,  they  have  no  written  con- 
stitution. What  is  called  the  British  constitution,  consists  of 
the  fundamentals  of  British  polity,  laid  down  in  customs,  prece- 
dents, decisions,  and  statutes.  The  common  law  in  it,  is  a 
far  greater  portion  of  it,  even  than  the  statutes  of  parhament. 
Their  constitution  depends  upon  the  caprice  of  parhament.  It 
can  be  changed  by  them  ;  and  it  is  changed  by  them  from  time  to 

a  Dwarris.  5  1  Black.  Com.  IGl. 


INTEODUCTORY  COMMENTARY.  45 

time  to  meet  emergencies.  They  have  actually,  in  several  instan- 
ces, changed  by  legislative  acts,  some  of  the  most  fimdameiital 
articles  of  government,  and  yet  in  no  country,  are  the  constitu- 
tional principles,  of  civil  and  pohtical  liberty,  more  discussed ; 
and  held  to  bo  sacred,  than  in  Great  Britain, 

With  us  in  America  it  is  different.  Such  strong  expressions  of 
power,  is  entirely  inappKcable  to  the  idea  of  legislative  authority 
in  American  States.  This  difl'erence  springs  fi'om  the  different 
theories  upon  which  the  two  governments  rest.  In  England,  par- 
Uament  is  recognized  as  possessing  the  sovereign  power  of  the 
country.  The  American  legislature  possesses  but  a  portion  of 
the  sovereign  power.  The  sovereignty  is  in  the  people  ;  and  the 
legislatures  wliom  they  create,  can  oidy  discharge  a  tnist,  (guarded 
with  restrictions,  well  defined)  of  which  the  people  have  made 
them  the  depository.  "When  in  a  rt^publican,  or  other  form  of 
government,  it  is  asserted  that  the  natural  and  necessary  source 
of  civil  authority  is  in  the  people  ;  it  is  intended  that  this  is  so, 
until  the  govei'nmcnt  has  been  formed ;  for  before  the  formation 
of  a  government,  it  cannot  be  said  the  people  have  pohtical  rights. 
So  that  primarily,  it  may  be  asserted,  that  sovereignty  resides  in 
God  himself,  wdio  is  the  source  of  all  order,  power,  right,  and  au- 
thority. "  By  me  kings  reign,  and  princess  decree  justice  ;"a  and 
St.  Paul  instructs  us,  that  "  there  is  no  power  but  of  God,  that 
the  powers  that  be,  are  ordained  of  God."Z>  As  therefore,  the 
Deity  liimself,  does  not  condescend,  directly  to  achninister  the 
government  of  States ;  those  upon  whom  the  sovereignty  rests, 
are  His  depositories  of  the  civil  power.  "  There  is  one  law-giver,  "c 
It  is  m  this  qualified  sense  then,  that  we  speak  of  human,  or 
governmental  sovereignty,  and  it  is  this  sense  that  we  say  in  our 
repubhcan  form  of  government,  that  the  people  are  the  source  of 
power. 

The  national  and  State  governments,  all  have  constitutions 
reduced  to  writing.  These  constitutions  emenate  fi'om  the  peo- 
ple, who  are  the  original  source  of  all  political  power.  The  peo- 
ple in  their  sovereign  capacity,  ordain  and  establish  this  funda- 
mental law,  which  is  paramount  to  the  power  of  the  legislature, 
and  is  the  supreme  law  of  the  land.     The  powers  of  the  legisla- 

a  1  Proverbs  8,  lo.  h  2  llomaus  13,  1.  c  3  James  4,  12. 


4<5  INTPiODUCTOEY  COMMENTAEY. 

ture  are  derived  fi'om  tlie  constitution,  and  are  subordinate  to 
it.  They  are  but  one  branch  of  the  sovereignty,  their  acts  de- 
pend upon,  are  hmited  by,  and  must  be  conformable  to  the  con- 
stitution. Every  act  of  the  legislature  repugnant  to  tliis  -written 
fundamental  law,  is  absolutely  void. 

Notwithstanding  the  difference  in  power  and  effect,  as  we  have 
shown,  between  the  statutes  passed  by  the  English  parhament, 
and  those  passed  by  the  legislature  of  the  American  States,  the 
law  of  interpretation  of  statutes  in  most  respects,  is  in  both  coun- 
tries, substantially  in  accord  and  harmony. 

Note. — It  is  in  regard  to  tliis  liarinony  of  views,  and  to  the  prescntatiou  of 
variances,  "n-lierever  they  are  found  to  exist  between  the  laws  of  the  two  coun- 
tries, that  much  of  this  work  v/ill  be  devoted. 


GENEKAL  KsTErJT.ETATION  OF  STATUTES.  47 


CIIAPTErt  II. 


GENERAL  DsTEIirRETATIOX  OF  STATUTES.  TURLIC  AND  TRR'ATE 
STATUTES.  ]\IANNER  OF  AUTHENTICATION  OF  STATUTES.  DIS- 
TINCTION BETWEEN  AMERICAN  AND  ENGLISH  STATUTES.  OF 
LEGISLATIVE  POWER -ENGLISH  AND  AilERICAN.  OF  JUDICIAL 
POWER. 

The  consideration,  and  the  interpretation  of  American  statutes, 
enacted  under  written  constitutions  which  Hmit  the  legislative 
power,  presents  another,  and  a  distinct  branch  of  law  for  examina- 
tion, not  known  to  the  law  of  England,  and  is  not  therefore,  neces- 
sarily treated  of  by  Dwarris  and  other  EngUsh  writers.  Farticu- 
hir  rules  of  intei-pretation,  laid  down  by  distinguished  authors 
on  municipal  and  civil  law,  as  well  in  England  as  elsewhere,  inclu- 
ding American  law,  will  be  found  in  a  subsequent  chapter.  Before 
proceedmg  to  the  general  consideration  of  the  different  divisions 
a.ul  characteristics  of  statutes,  a  few  general  rules  for  their  inter- 
pretation may  not  be  inappropriate. 

Professor  Lieber  in  his  work  on  "  Legal  and  PoUtical  Herme- 
neuties,"a  lays  down  this  sound  proposition ;  "  that  the  very 
basis  of  all  interpretation  is,  that  no  sentence  or  form  of  words  can 
have  more  than  one  true  sense."  So  that  a  statute  enacted  by 
t1i(^  legislature,  like  the  utterances  of  an  individual,  or  of  any 
otlior  body  of  individuals,  in  the  use  of  words,  does  so,  to  convey 
some  certain  meaning ;  and  to  find  their  precise  meaning,  is 
(he  AA'liole  object  of  interpretation.  If  words  used,  arc  so 
employed,  that  they  are  capable  of  two  meanuigs,  equally  sensi- 
l)h',  it  amounts  to  such  an  absurclit}',  that  it  is  equivalent  to  having 
no  meaning  at  all.  "  Even  if  a  man  use  words,  from  kmdness  or 
malice,  in  such  a  way  that  they  may  signify  one  or  the  other 
thing,  according  to  the  view  of  him  to  whom  they  are  addressed, 
tlie  utterer's meaning  is  not  two-fold;  his  meaning  is,  simply,  imt 

a  Chap,  i,  §  2. 


48  GEKElu\L  IN'TEEPKETATION  OF  STATUTES. 

to  express  his  opmion.''  Tliis  prmcij)le  of  interpretation,  may  witli 
equal  propriety,  be  carried  into  a  statute,  where  fi'om  its  letter, 
sueli  must  be  lield  to  be  its  design. 

In  no  case  of  human  life  in  which  we  are  called  upon  to  act, 
to  apply  rules,  or  to  understand  what  others  say,  can  we  dispense 
with  common  sense,  and  good  faith ;  a  but  they  are  pecuUarly 
requisite  in  interpretation,  because  its  object  is,  to  discover  some- 
tliing  that  is  doubtful,  obscure,  veiled ;  which,  therefore,  may 
admit  of  different  explanations.  If  without  common  sense  we 
may  make  even  of  strict  syllogism,  an  insti-ument,  apparently,  to 
prove  absurdities,  how  much  more  are  those  two  ingredients  of 
all  honesty,  necessary  in  interpretation.  Common  sense  and  good 
faith,  are  the  leading  and  principal  characteristics  of  all  interpre- 
tation. The  object  must  not  be,  to  bend,  twist,  or  shape  the  text 
until  it  can  be  forced  into  the  mould  of  preconceived  ideas ;  but 
simply  and  solely,  to  fix  upon  the  true  sense,  whatever  that  maj-  be. 

Good  faith  in  interpretation,  means,  that  we  conscientiously 
desire  to  arrive  at  truth  ;  that  we  honestly  use  all  means  to  do  so ; 
and  that  we  strictly  adhere  to  it ;  when  known  to  us,  it  mean=!, 
the  shunning  of  subterfuges,  quibbles  and  political  shuffling  ;  it 
means  that  we  take  words  fairly  as  they  were  meant. 

If  good  faith  be  not  the  guiding  star  to  direct  in  the  construe 
tion  of  solemn  instruments,  hke  constitutions  and  statutes,  no 
human  wisdom  can  devise  an  instrument  of  this  character  that 
may  not  be  interpreted  so  as  to  effect  any  thing  but  that  for 
which  it  was  intended.  We  gain  nothing  by  verbosity,  or  a  mi- 
nute enumeration  of  details ;  for  the  instmment,  especially  if  it  be 
a  constitution,  is  to  embrace  all  branches,  and  to  hold  good  for 
many  generations.  If  we  attempt  then  to  detail  for  every  thing 
oefore  hand,  we  only  impede,  fetter  and  obstruct.  This  has  been 
fully  proved  by  experience ;  if  on  the  other  hand  the  instrument 
contains  only  the  great  principles  and  general  outlines  of  the 
power  conferred,  then  faithless  interpretation  has  free  play.  Con- 
stitutions are  useful  and  indispensible  for  the  clear  understanding 
of  citizens  on  the  most  important  subjects  affecting  their  rights ; 
to  give  them  a  fair  and  intelligent  knowledge  of  the  all  iui- 
portant  elements  of  their  rights  to  civil  liberty ;  of  the  relation 

a  LieLers  Political  Ethics,  vol.  I,  Book  1,  chap.  G. 


GENERAL  INTERPRETATION  OF  STATUTES.  49 

of  the  citizen  to  society  iu  the  aggi-egate,  the  State;  and  to 
furnish  an  independent  judiciary  a  fulcrum,  to  rest  its  lever  upon 
against  hiws  hostile  to  that  true  relation  of  tlio  individual  to  the 
State  ;  laws,  which  might  otherwise  oppress  him. 

"  It  is  not  constitutions  that  make  liberty.  Liberty  is  not  secured 
by  a  certam  number  of  words  written  on  parchment.  The  parch- 
ment, with  its  ink  upon  it,  may  be  eaten  by  the  worms ;  it  may 
be  torn  to  shreds  by  any  daring  hand  ;  but  if  an  independent 
judiciary  shall  pronounce  the  solemn  expression  of  its  trae  spirit, 
as  the  law  of  the  nation,  or  of  the  State,  the  li^^ng  words  of  their 
judicial  interpretation,  shall  be  perpetuated. "a 

Let  all  such  judicial  determinations  bear  the  impress  of  good 
faith,  with  hberal  vie^vs  of  construction  in  favor  of  ci\il  hberty. 
"  Let  everything  that  is  in  favor  of  power  be  closely  construed ; 
everything  in  favor  of  the  security  of  the  citizen,  and  the  protec- 
tion of  the  individual,  be  hberally  and  comprehensively  intei-pre- 
ted ;  for  the  simple  reason,  tliat  power  is  power,  and  therefore 
able  to  take  care  of  itself,  as  well  as  tending  by  its  nature  to 
increase,  while  the  citizen  may  need  protection." 

For  the  same  reason  says  Mr.  Liebcr,«  ought  we  always  to  be 
ready  to  construe  comprehensively,  in  favor  of  the  indej)endence 
of  the  judiciary,  and  against  the  executive,  because,  it  is  all 
important  that  the  judiciary  be  independent,  while  it  has  none 
of  those  many  influential  means  of  the  executive ;  no  pageantry ; 
no  honors  to  bestow ;  no  salaries  to  dispense ;  no  army,  navy,  or 
grants  of  land  at  their  disposal.  It  rests  only  on  opinion,  a 
mighty  power  indeed,  in  an  honest  and  faithful  administration  of 
its  department  of  the  government.     Hence  it  should  be  shielded." 

All  new  laws,  though  penned  Avith  the  greatest  technical  skill, 
and  passed  upon  the  fullest  and  most  mature  deliberation,  are 
considered  as  more  or  less  obscure  and  equivocal  until  their 
meaning  be  fixed  and  ascertained  by  a  series  of  particular  dis- 
cussions and  adjudications.  Besides  the  obscurity  arising  from 
the  complexity  of  the  objects  and  the  imperfection  of  human  fac- 
ulties; the  medium  through  which  the  conceptions  of  men  are 
conveyed  to  each  other  adds  a  fresh  embarrassment,  the  use  of 
words  is  to  express  ideas.     Perspicuity,  therefore,  requires  not 

a  Lieber's  Polilicul  Ilermonouties,  chap.  G,  §  10.  h  Id. 

7 


60  GENERAL  INTEEPEETATION  OF  STATUTES. 

only  that  tlie  ideas  sLould  be  distinctly  formed,  but  tliat  they 
should  be  expressed  by  words  distinctly  and  exclusively  appro- 
priated to  them.  But  no  language  is  so  copious  as  to  supply 
^\'ords  and  phrases  for  every  complex  idea,  or  so  correct  as  not  to 
include  many,  equivocally  denoting  different  ideas.  Hence  it 
must  happen;  that  however  accurately  objects  may  be  discrimi- 
nated in  themselves  ;  and  however  accurately  the  discrimination 
may  be  considered ;  the  definition  of  them  may  be  rendered  inac- 
curate ;  by  the  inaccuracy  of  the  terms  in  which  it  is  delivered. 
And  this  unavoidable  inaccuracy  must  be  greater  or  less,  accord- 
ing to  the  complexity  and  novelty  of  the  objects  defined.  "  When 
the  Almighty  himself  condescends  to  address  mankind  in  their 
o^Ti  language.  His  meaning,  luminous  as  it  must  be,  is  rendered 
dim  and  doubtful  by  the  cloudy  medium  through  which  it  is  com- 
municated."a 

Here  then  are  three  sources  of  vague  and  incoiTect  defini- 
tions ;  indistinctness  of  the  object,  imperfection  of  the  organ  of 
conception,  and  inadequateness  of  the  vehicle  of  ideas.  Any  one 
of  these  must  produce  a  certain  degree  of  obscurity. 

No  human  wisdom  can  prepare  a  law  in  such  a  form,  and  in 
such  simplicity  of  language,  as  that  it  shall  meet  every  possible 
complex  case  that  may  afterward  arise.  "Whatever  skill  and  fore- 
thought the  most  profound  of  human  law-makers  may  have  called 
to  his  aid,  it  will  be  found  that  even  such  law-giver,  though  he 
may  possess  the  highest  of  intellectual  gifts,  will  not  possess 
grasp  of  mind,  enough  to  draw  up  a  constitution,  or  an  enactment 
so  perfect  at  the  time  it  is  drawn,  that  no  doubtful  case  shall  not 
afterwards  arise  as  to  its  meaning.  And  as  time  wears  on,  and 
the  wants  and  habits  of  society  become  changed,  as  they  ever 
will  change  with  the  progressive  march  of  'inteUigence,  especially 
in  a  land  enjoying  the  blessings  of  civil  and  rehgious  freedom ; 
the  interpretations,  suitable  to  a  past  age,  will  become  more  and 
more  impracticable  to  the  present,  as  to  all  new  questions. 

These  are  propositions  so  well  confirmed  by  experience,  that 
statesmen  and  la^-j^ers  now  agree  upon  the  wisdom  of  preparing 
such  instruments  with  general  outhnes,  in  language  clear  and 
easily  understood,  rather  than  of  attempting  minute  details,  how- 

a  Federalist,  No.  36. 


GENERAL  INTERrRETATION  OF  STATUTES.  51 

ever  elaborately  extended  ;  the  tendency  of  uliich  is  found  in  ex- 
perience to  contract,  and  often  to  confuse  the  expression  of  intent. 
It  is  found  to  be  far  easier  to  obtain  the  intent  of  the  legislator, 
when  laws  are  brief  and  clear,  and  to  rely  upon  good  faith  and 
common  sense  for  their  construction,  than  to  bo  embarrassed  at 
every  step  with  di-tails,  which  prevent  the  application  of  general 
principles,  because  the  specific  case  has  not  been  enumerated  and 
singled  out  by  the  hiAV-makers.  It  is,  however,  a  well  known 
maxim  of  jimsprudencc,  that  the  certainty  of  the  law,  is  next  in 
importance  to  its  justice.  I>y  certainty  of  the  laAV  is  meant,  that 
it  be  well  defmed,  known,  and  unchangeable,  and  also  that  its  pen- 
alties fall  with  unerring  certainty  upon  those  who  deserve  them. 

It  has  been  slioAvn  that  it  is  impossible  to  word  laws  in  such 
a  manner  as  to  absolutely  exclude  all  doubt,  or  to  allow  us  to  dis- 
pense with  construction,  even  if  they  were  worded  with  absolute 
(mathematical)  precision,  for  the  time  for  which  they  were  made ; 
because  things  and  relations  change,  and  because  different  inter- 
ests conflict  wdth  each  other.  The  very  object  of  general  laws, 
is  to  estabhsh  general  rules  beforehand ;  for  if  we  w^ould  attempt 
to  settle  each  case,  according  to  the  views,  which,  with  the  momen- 
tary interest  it  might  itself  suggest,  we  would  establish  at  once 
the  most  insufferable  tjTanny  or  anarchy.  This  inherent  gener- 
ahty,  however,  is  likewise  the  reason  why  the  application  of  laws 
require  construction,  since  most  cases  occurring  are  of  a  com- 
plex character.  It  is  in  vain,  therefore,  to  beheve  in  the  possi- 
bility of  forming  a  code  of  laws  absolutely  distinct,  like  mathe- 
matical theories.  All  that  true  wisdom  requires  is  to  make  laws 
as  distinct  and  perfect  as  possible,  following  both  the  dictates  of 
reason  and  the  suggestions  of  experience,  and  carefully  to  estab- 
lish rules  of  interpretation  and  construction,  or  legal  hermeneu- 
tics.a 

"  Yet  it  is  my  settled  conviction,  that  the  clearest  possible  laws 
are  an  incalculable  blessing  to  a  community  extending  much  far- 
ther than  merely  to  the  avoiding  of  unnecessary  litigation,  whilst 
obscure  or  imnecessarily  intricate  laws  are  a  very  curse  to  a 
nation,  and  serve  to  unite  the  lawyers  into  a  compact,  formidable 
and  privileged  class."Z» 

a  Lieber,  cliap.  G,  sec.  7.  b  Id. 


52  PUBLIC  AKD  TErVATE   STATUTES. 

Statutes  admit  of  a  variety  of  di\isions,  namely,  public  and 
private,  declaratory  and  remedial,  preceptive,  prohibitive,  per- 
missive and  penal,  temporary  and  perpetual,  affirmative  and  neg- 
ative, prospective  and  retrospective,  constitutional  and  unconsti- 
tutional. 

In  treating  of  the  division  of  statutes,  we  shall  omit  that  dis- 
tinction which  exists  in  England,  but  which  has  no  apj)hcation 
here,  to  wit,  between  ancient  and  modern  statutes ;  those  dating 
before  and  those  after  a  certain  period  in  Enghsh  history.a  Ameri- 
can statutes  that  have  not  been  repealed,  or  are  not  in  some  way 
abrogated,  do  not  become  impaired  by  mere  lapse  of  time,  but 
are  all  equally  in  force ;  and  though  here,  as  in  England,  we  have 
acts  known  as  2^vl>Uc,  and  private  acts,  and  also,  as  local  and 
personal  acts,  unhke  the  Enghsh,  our  statutes  are  all  printed 
and  pubhshed.?>  Each  of  these  divisions  will  be  noticed  in  their 
appropriate  place. 

We  might  in  this  place  refer  to  another  division  of  statutes 
that  exist  here,  which  is  imknown  in  England,  to  wit :  stat- 
utes of  the  United  States  or  federal  government  passed  by 
Congress;  statutes  of  the  several  States  passed  by  the  legis- 
'  latures  of  the  several  States ;  and  colonial  statutes  passed  by 
the  several  colonial  governments  before  their  separation ;  to 
which  it  may  perhaps  be  added,  territorial  acts,  passed  by  the 
new  territories  before  their  admission  in  the  Union  as  States. 
But  this  last  division  is  of  little  practical  importance,  and  calls  for 
no  special  consideration. 

The  first  division  of  statutes  that  I  propose  to  notice,  is  that 
of  general,  or  puhUc  acts,  and  such  as  are  special  or  private. 

AjJuUic  act  is  a  universal  rule,  that  regards  the  whole  commu- 
nity ;  and  of  this,  courts  of  law  are  bound  to  take  notice  judi- 
cially, and  ex  officio,  without  the  statute  being  particularly  pleaded, 
or  formerly  set  forth  by  the  party  who  claims  advantage  under 
it.  c      Private  acts  are  those  which  concern  only  a  particular 

a  The  antiquari.in  or  student  who  may  be  curious  to  learn  the  history  of  early 
ordinances  of  the  King  and  his  Council,  is  referred  to  the  iirst  volume  of  Dwarris 
■which  is  chiefly  devoted  to  such  early  history. 

I)  Art.  6,  Const.  N.  Y.  of  184G,§  22;  Const.  U.  S.,  art.  4,  §  1 ;  Statutes  at  Large,  vol. 
1;  122;  vol.  9,  75. 

c  1  Black.  Com.  80.  Com.  Dig.  tit.  rarliumcut,  E,  7. 


rUBLIC  AND   riUVATE  STATUTES.  53 

species,  thing,  or  person ;  of  which  the  judges  will  not  take  notice 
without  pleading  them ;  as  acts  relating  to  any  particular  place  ; 
or  to  divers  particular  towns;  or  to  one  or  divers  particular 
counties;  or  to  a  college  or  university;  etc'  It  is  sometimes 
difficult  to  draw  the  line  between  a  pubHc  and  private  act,  for 
statutes  fi'cqucntly  relate  to  matters  and  things  that  are  partly 
pubUc  and  partly  private.  Generally  speaking,  statutes  are 
public ;  and  a  private  statute  may  rather  be  considered  an  excep- 
tion to  the  general  nile.a  The  most  comprehensive,  if  not  the 
most  precise  definition,  is  that  given  by  Dwarris ;  "  that  public 
acts  relate  to  the  pubhc  at  large,  and  private  acts  concern  the 
particular  interest  or  benefit  of  certain  individuals,  or  of  particu- 
lar classes  of  men." 

In  a  general  act,  there  may  be  a  private  clause,  b  So,  a  statute 
which  concerns  the  public  revenue  is  a  iniUic  statute,  but  some 
clauses  therein,  may,  if  they  relate  to  private  persons  only,  be 
private ;  for  a  statute  may  be  public  in  one  part,  and  private  in 
another,  c  * 

A  general  or  public  act,  then,  regards  the  whole  community ; 
special  or  private  acts  relate  only  to  j)articular  persons,  or  to  pri- 
vate concerns.  Public  acts,  the  courts  of  justice  are  bound  ex 
officio  to  notice,  without  their  being  formally  set  forth.  Of  pri- 
vate acts,  the  judges  are  not  bound  to  take  notice  unless  they  be 
formally  shown  and  pleaded.  And  this  is  the  doctrine,  though 
the  private  act  should  make  void  all  proceedings  to  the  contrary 
in  such  place,  d 

As  the  judges  are  bound  to  take  notice  of  a  general  law,  so  it 
is  their  province  to  determine  Avhether  it  be  a  statute  or  not,  and 
whether  pubhc  or  private.     It  was  held  upon  one  e  occasion  that 

a  1  Kent  Com.  459.  d  Skin.,  350. 

6  4  Cowen.  79.  e  Lord  Kaym.,  709. 

c  Dwarris. 

Note  1. — The  exceptions  to  this  rule  are  in  the  State  of  Virginia.  These  pri- 
vate statutes  need  not  be  pleaded,  yet  they  must  bo  exhibited  in  court  as  docu- 
ments. Even  there,  they  will  not  be  noticed  judicially  like  public  statutes.  Le 
Grand  v.  Hamp.  Sid.  College,  5  Munf.  K  32-4.  And  in  Kentucky,  the  courts  judi- 
cially notice  private  as  well  as  public  statutes,  if  printed  without  their  being  form- 
ally pleaded.  Ilalbert  v.  Skyles,  1  Marsh.  Ken.  K  3G8.  Farmers  and  Mechanica 
Dank  v.  Jervis,  1  Munroe,  K.  4,  5. 

Note  2. — Laws  creating  banks  of  issue,  though  not  declaring  themselves  public, 
are  public  laws.  Smith  v.  Strong,  2  Hill,  241 ;  Bank  of  Utica  v.  Smedes,  3  Cowen 
662. 


54  PUBLIC  AND   rWVATE   STATUTES. 

the  judges  are  not  obliged  to  take  notice  of  a  statute  of  general 
liar  don,  unless  tliey  are  by  such  statute  itself  directed  to  do  so  ;a 
for  as  a  "-eneral  pardon  only  relates  to  offenders,  it  is  not  a  public 
statute.  For  it  is  added,  it  is  by  no  means  a  consequence  that 
because  a  man  is  enabled  to  give  such  statute  in  evidence  upon 
the  general  issue,  that  the  judges  must  take  notice  of  it  for  any 
other  piu'xjose.  But  this  appears  to  be  a  harsh  constniction,  and 
such  as  would  scarcely  be  supported  at  the  present  day.  Accord- 
ino'lv,  another  case  will  be  found,  h  decided  about  the  same  time, 
iu^'hich  a  statute  for  the  chscharge  of  poor  prisoners  was  rehed 
upon  by  the  defendant,  and  an  exception  taken  that  it  should  have 
been  pleaded  at  large  (being  a  private  statute),  as  not  extending 
to  aU  prisoners,  but  to  such  only  as  were  in  prison  at  a  time  men- 
tioned in  the  act.  The  court,  however,  constraed  it  to  be  a  pub- 
he  statute,  holding  that  all  the  people  of  England  might  be  inter- 
ested as  creditors  ;  that,  as  a  mercifid  act,  it  should  have  a  favor- 
able construction ;  and  that  poor  prisoners  ought  not  to  be  put 
to  the  difficulty  and  expense  of  pleading  it  speciahy :— three 
grounds,  which  were  sound,  merciful  and  just. 

The  probable  gi'ounds  of  the  declared  difference  in  tlie  judicial 
notice  of  statutes,  pubhc  and  private,  may  be  {besides  the  solem- 
nity and  intrinsic  authority  of  a  public  act  of  the  legislature,  and 
tl^e  supposed  greater  notoriety  of  a  matter  of  universal  concern), 
the  extreme  inconvenience  of  a  contrary  rule,  and  the  difficulty 
and  uncertainty  of  which  it  would  be  productive. 

The  i-ule  which  wo  have  given,  however,  without  regard  to  the 
supposed  reasons  for  its  adoption,  depends  on  positive  law,  and 
not  on  conjectural  expediency.  Accordmgly,  the  existence  of  a 
pubhc  act  must  be  tried  by  the  judges,  who  are  to  inform  them- 
selves of  this,  in  the  best  way  they  can.  A  private  act  may  bo 
put  in  issue  and  shall  be  tried  by  the  record.' 

a  Ingram  and  Foot,  12  Mod.  613.  h  Lord  Eaym.  120,  Jones  v.  Axcn. 

j^oTE  3. A  private  act  that  confirms  a  Lmd  claim,  is  presumed  to  have  been 

passed  with  reference  to  the  particular  claims  of  the  individuals  who  so  claim  to 
be  interested,  and  to  the  situation  of  the  land  embraced  in  the  law  at  the  time  it 
was  passed;  but  such  an  act  does  not  enlarge  the  parties  rights  as  against  adverse 
claimants,  nor  conclude  them.  Pollard's  heirs  v.  Kibbe,  14  Pet.  353;  Laufear  v. 
Huntly,  4  Wall.  204.  Though  an  act  confirming  a  deed  given  by  an  executrix  on 
a  sale  of  land  in  order  to  pay  the  testators  debts,  will  be  held  good  as  against  the 
heirs  at  law  of  the  testator.    Leland  v.  Wilkinson,  10  Pet.  294. 

2.  It  has  been  held  that  vrhere  a  statute  makes  it  felony  to  steal  the  notes  of  a 
particular  bank,  its  act  of  incorporation  thereby  becomes  a  public  statute,*  U.  S. 
v.  Porte,  1  Cranch.  C.  C.  Pi.  3C9  ;  and  in  Young  v.  Bank  of  Alexandria,  4  Cranch. 
R.  388,  an  act  of  the  State  of  Virginia,  incorporating  the  Bank  of  Virginia  was 
declared  a  public  act. 

*  What  is  a  public  act?  4  Pet.  16G. 


DIVISION  OF  STATUTES.  55 

To  both  the  general  mlcs,  that  general  or  public  acts  are  to  be 
noticed  judicially  without  pleading,  and  that  special  acts  must  be 
shown  by  pleading,  there  will  be  found  in  this  country  some  other 
exceptions.  Among  these  exceptions,  are  those  that  rejate  to  the 
particular  character  of  the  statute,  and  among  these,  are  the 
statutes  of  limitations,  and  the  statute  against  usury.  These  are 
pubhc  and  general  statutes,  yet  the  party  who  intends  to  avail 
himself  of  their  benefits,  must  plead  them,  or  he  will  not  be  per- 
mitted to  give  the  defence  arising  under  8uch  statutes  in  evidence. 

And  though  a  cause  of  action  appear  in  the  declaration  or  com- 
plaint to  have  accrued  upwards  of  six  years  before  the  commence- 
ment of  the  action,  a  defendant  can  only  have  the  advantage  of 
it  by  plea,  or  answer.ft 

But  in  pleading  in  a  case  which  is  to  be  governed  by  the  prin- 
ciple of  a  statute  of  the  mother  countiy  which  became  a  pai*t  of 
the  colonial  common  law,  it  is  not  necessary  to  refer  to  the  statute; 
it  is  enough  to  plead  the  facts  which  bring  the  case  within  it  as  a 
part  of  the  common  law  of  the  State.& 

Acts  of  Parliament  are,  again,  declakatory  of  the  old  law,  or 
introductory  of  new,  or  both,  as  by  the  addition  of  greater  pen- 
alties, the  destruction  of  particular  customs,  and  the  like.  Declar- 
atory, are  necessarily  in  their  terms,  filJirmativc  or  negative.  Both 
kinds  of  laws,  those  declared  and  aHirmcd,  as  well  as  those  newly 
enacted,  may  be  tenal  ;  the  affirmance  of  the  anterior  law  can- 
not properly  be  styled  remedial.  A  subordinate  division  of 
remedlUj  acts  has  been  made  into  enabling  and  disabling — 
ENLARGING  and  RESTRAINING — statutes.  Tliosc  against  natural  law 
and  reason  are  said  to  be  void. 

It  is  proposed  to  examine  the  natiire  of  each  successively ;  the 
rules  with  regard  to  their  construction  wiU  be  more  fitly  consid- 
ered at  a  future  period. 

a  See  2  CLitty,  PI.  -loO  and  notes;  Puckle  v.  Moor,  1  Vents.  191;  Lee  v.  Eodgers, 
1  Lev.  110;  Gooldv.  John,  2  Ld.  Kaym.  838;  N.  Y.  Code,  §  §  7-1,   119,  150;  Voor- 
hees  V.  Voorhees,  24  Barb.  150;  Sands  v.  St  John,  3G  Barb.  G28. 
6  Bogardus  v.  Trinity  Cliiircli,  2  Paige  E  198. 

3.  A  iirivate  act  of  incorporation  is  to  be  regarded  as  in  the  nature  of  a  con- 
tract, and  cannot  eSect  the  rights  of  individuals  who  do  not  assent  to  it  ;  but 
their  assent  may  be  inferred  from  their  acts,  such  as  taking  benefits  under  it 
Beatly  v.  Knowler,  4  Pet.  166. 

4.  An  act  prescribing  the  boundaries  of  a  county  is  a  public  act.  Steiihenson 
V.  Doe,  8  Black.  508. 


56  DIVISION  OF  STATUTES. 

And  first  of  declaeatory  acts.  These  are  made  wLere  tlie  eld 
custom  of  tlie  kingdom  is  almost  fallen  into  disuse,  or  become 
disputable,  in  wliicli  case  the  Parhament  has  thought  proper,  in 
Iterpetmnn  rei  testimonium,  and  for  avoiding  all  doubts  and  diffi- 
culties, to  declare  what  the  common  law  is  and  ever  hath  been. 
And  such  statutes  are  expressed  affirmatively,  or  in  negative  terms. 
A  statute  made  in  the  affirmative,  without  any  negative  expressed 
or  implied,  does  not  take  away  the  common  law.  It  follows,  that 
it  does  not  effect  any  prescriptions  or  customs  clashing  with  it, 
-.i-hich  were  before  aUowed  ;  in  other  words,  the  common  law  con- 
I'.nues  to  be  construed  as  it  was  before  the  recognition  by  Parha- 
ment. 

The  next  difference  observable  between  public  and  private 
statutes,  is,  that  particular,  as  opposed  to  general  acts,  will  not 
bind  strangers ;  though  they  should  not  contain  any  savmg  of 
their  rights.  A  general  saving  of  the  rights  and  interests  of  all 
]:>ersons  whatsoever,  except  those  whose  consent  was  given  or  pur- 
chased, and  who  were  particularly  named  in  the  act,  used  to  be 
constantly  added  to  all  private  bills  ;  but  it  was  held,  that,  even 
if  such  sa\dng  w^ere  omitted,  the  act  would  bind  none  but  the 
parties.  At  present,  it  is  usual  a  in  preparing  modern  private 
acts,  to  insert,  ex  cautela,  a  special  saving  clause,  explaining  how 
far  the  rights  of  strangers  are  intended  to  be  affected. 

The  reason  of  the  rale  is  apparent,  and  the  rule  itself  is  founded 
in  wisdom  and  justice.  Every  person  is  considered  as  assenting 
to  a  public  act ;  b  but  it  is  a  ride,  that  private  acts  of  Parliament, 
introduced  only  for  the  settlement  of  particular  estates,  ought  to 
be  considered  merely  as  common  conveyances,  and  directed  by 
the  same  rules  of  law ;  and  therefore  they  cannot  be  taken^  to 
extend  as  a  discharge  of  any  person's  right  not  mentioned  in  the 
act.  This,  says  the  judicious  and  candid  commentator  on  the 
laws  of  the  United  States  of  America  c  is  a  safe  and  just  rule, 
and  it  was  it  was  adopted  by  the  English  Courts  in  very  early 
times,cZ  and  does  great  credit  to  their  hberality  and  spirit  of 
justice.  It  is  supported  by  the  opinion  of  Sir  Matthew  Hale,  in 
Lucy  and  Levington,  o  where  he  lays  down  the  rule  to  be,  that 
"  though  every  man  be  so  far  a  party  to  a  private  act  of  Parha- 
ment as  not  to  gainsay  it,  yet  he  is  not  so  far  a  party  as  to  give 
up  his  interest."  It  is  the  great  question  in  Bamngton's  case,  8 
Eep..  "  The  matter  of  the  act  there  directsMt  to  be,  between  the 
foresters  and  the  proprietors  of  the  soil ;  and  therefore  it  shall 
not  extend  to  the  commoners,  to  take  aAvay  their  common.  Sup- 
pose a  statute  recites,  that  whereas  there  was  a  controversy  con- 
cerning land  between  A.  and  B.,  and  enacts,  that  A.  shall  enjoy 

a  See  Hargrave  and  Butler's  note  to  Co.  Litt.  98.      c  1  Kent,  427. 
h  Per  Lord  Hardwicke,  And.  40,  1  T.  E.  93.  el  Ventris,  175. 

d  Bro.  Pari.  pi.  27;  Barrington's  case,  8  Rep.  138. 


PUBLIC   AND   PRIVATE   STATUTES.  57 

it,  this  would  not  bind  the  interest  of  tliird  persons  in  that  land, 
because  they  arc  not  strictly  parties  to  the  act,  but  strangers ; 
and  it  would  be  manifest  injustice  that  the  statute  should  affect 
them."  This  rule  as  to  limiting  the  operation  of  private  statutes, 
is  adopted  l)v  the  Courts  of  the  United  States  of  America.a 

Anotlier  diflerence  has  prevailed  in  England  with  regard  to 
offering  these  different  statutes  in  evidence.  The  printed  statute 
book  has  been  at  all  times  admitted  as  evidence  of  a  ^>//W/r  statute 
of  Parliament,  not  as  an  authentic  copy  of  the  record  itself,  but 
as  (so  it  is  gravely  said)  hints  of  that  which  is  supposed  to  be 
lodged  in  every  man's  mind  already,  b  And  now  by  the  statute 
41  Geo.  3  Ch.  90,  §  9,  made  for  the  better  and  more  effectual 
proof  of  the  statute  law,  it  has  been  enacted  that  the  copies  of 
the  statutes  of  Great  Britain  and  Ireland  prior  to  the  Union, 
printed  by  the  i)rinter  duly  authorized,  shall  be  received  as  con- 
clusive evidence  of  the  several  statutes  in  the  courts  of  either 
kingdom.  But  as  we  have  before  stated,  a  2>nva(e  act  may  con- 
tain clauses  of  a  public  nature  ;  and  then,  the  act,  so  far  as  those 
are  concerned,  is  to  be  regarded  as  a  public  act.c  The  public  are 
not  generally  considered  as  affected  by  the  contents  of  a  private 
act ;  and  facts  recited  in  the  preamble  of  a  private  act,  is  not 
proof  of  those  facts  as  against  a  stranger,  a  tliird  party,  or  the 
pul)lic." 

The  regular  proof  of  private  acts  of  Parliament,  is  by  an 
examined  copy  compared  with  the  original  in  the  Parliament 
office  at  Westminster.^^  But  gi'eat  inconvenience  having  been 
foimd  to  result  fi'om  the  necessity  of  such  strict  proof,  a  special 
clause  has  now,  usually  been  inserted,  providing  that  the  act  shall 
be  deemed  public,  or  pro\dding  that  they  should  be  printed  by 
the  King's  prmter,  and  that  a  copy  so  prmted,  shall  be  admitted 
as  evidence  of  the  act.  In  such  cases,  a  copy  purporting  to  be 
printed  by  the  King's  printer,  will  be  admissible  in  e^ddence  ;  it 
is  not  necessary  to  prove  that  the  act  was  printed  at  the  King's 
printers.e 

"Where  the  copy  of  an  act  is  incorrect,  the  court  will  be  gov- 
erned by  the  Parliament  Roll./' 

It  should  also  be  remarked,  that  there  is  a  diflerence  between 
pro-s-ing  private  acts  to  a  jury,  and  proving  them  on  the  issue  of 

a  Kent's  Comm.  on  American  Law,  voL  1,  428.  d  Phil.  Ev.  30G. 

b  Gilbert's  Ev.  10.  e  2  Phil.  Ev.  129,  R.  v.  Shaw.  12,  East.  R.  -179. 

c  R.  V.  Utterby,  2  Phil.  Ev.  127.  /Rex  v.  Jeflfrie,  1  Str.  U6. 

Note  5. — Every  subject  of  a  govcrumcut,  is,  in  judgment  of  law,  privy  to  the 
making  oi  a  public  statute,  and  is  supposed  to  know  them.  The  passing  of  a 
jDublic  legislative  act,  is  a  public  iiroceeding  in  all  its  stages,  and  when  it  is 
passed,  it  is  in  contemplation  of  law,  the  act  of  the  whole  body  of  the  State.  But 
recitals,  even  in  a  public  act  are  not  conclusive  evidence  of  the  facts  therein 
stated.     2  Phil.  ev.  272. 

s 


58  AUTHENTICATION  OF  STATUTES. 

nul  tiel  record,  wliicli  never  goes  to  a  jury  ;  nothing  less  tlian  an 
Exemplification  nndcr  tlic  Great  Seal  being  sufficient  in  the  latter 
case. 

And  so  much  for  the  division  of  statutes  into  public  and 
private  acts,  with  their  respective  incidents. 

Statutes  are  either  declaratory  of  the  common  law,  or  remedial 
of  some  defects  therein.a  Declaratory  statutes  are  generally 
introductory  of  a  new  law ;  remedial  statutes,  are  generally  men- 
tioned in  contradistinction  to  penal  statutes.  In  the  consti-uction 
of  remedial  statutes,  three  points  are  to  be  considered.  1st,  the 
old  law,  2d,  the  mischief,  and  3d  the  remedy.  That  is,  1st,  how 
the  common  law  stood  at  the  time  of  the  making  of  the  act ;  2d, 
what  the  mischief  was  for  which  the  common  law  did  not  provide, 
and  3d,  what  remedy  the  statute  hath  provided  to  cure  this  mis- 
chief. And  it  is  the  duty  of  Judges,  so  to  construe  the  act,  as  to 
suppress  the  mischief,  and  advance  the  remedy.6 

The  authentication  of  our  national  statutes  is  now  declared  by 
an  act  of  Congress,  passed  August  8,  1846,  (Statutes  at  Large, 
Vol.  9,  75)  ;  by  which  it  is  enacted,  that  the  laws  and  treaties  of 
the  United  States,  published  by  Little  &  Brown,  shall  be  compe- 
tent evidence  of  the  several  jnihlic  and  private  acts  of  Congress, 
and  the  several  treaties  therein  contained,  in  all  the  courts  of  law 
and  equity,  and  of  maritime  jurisdiction,  and  in  all  the  tribunals 
and  public  offices  of  the  United  States,  and  of  the  several  States, 
A\dthout  any  further  proof  or  authentication  thereof. 

By  another  act  of  congress,  passed  May  26,  1790,  (1  Statutes 
at  Large,  Vol.  1,  122,)  it  is  declared,  that  the  acts  of  the  legisla- 
tures of  the  several  States  shall  be  authenticated  by  having  the 
seal  of  their  respective  States  affixed  thereto.  Courts  will  pre- 
sume that  the  person  who  affixed  the  seal  had  authority  to  do  so.c 

But  these  authentications,  so  far  as  they  relate  to  the  courts  of 
the  United  States,  ipefer  only  to  jpublic  statutes.  Private  statutes, 
and  laws,  and  special  proceedings,  are  governed  by  a  different 
rule.  They  are  matters  of  fact,  to  be  proved  as  such  in  the  ordi- 
nary manner,  d 

An  act  of  a  State  legislature,  which  contains  a  provision  declar- 
ing it  a  pubhc  act,  must  be  noticed  by  the  courts  of  the  United 
States  without  being  specially  pleaded,e  otherwise  not. 

a  1  Black.  Wm.  86,  E.  22.  5  Co.  Litt.  11,  42. 

c  United  States  v.  Amedy,  11  AVheat.  392  ;   Same  v.  John.son  4  Dallas,  412,  416. 
d  Leland  v.  Wilkinson,  6  Peters  617. 
e  Beatty  V.  Knowler,  4  Pet.  152;  Drawbridge  Co.  y.  Shepherd,  20  How.  232. 


AUTHENTICATION  OF  STATUTES.  59 

Statutes  and  edicts  of  foreign  countries  must  be  produced  in 
evidence.a  If  it  does  not  appear  tliat  foreign  laws  in  question 
were  in  uriiiiu/  as  puJiJic  edicts  or  statutes,  they  may  be  proved 
by  parol. 6 

A  copy  of  the  Civil  Code  of  France,  presented  to  the  Supreme 
Court  of  the  United  States  with  this  endorsement :  "  Le  Garde 
dcs  Scmux  de  France  a  la  Cocur  Supreme  Dcs  Mats  Uriis"  has 
been  admited  as  evidence  of  the  written  laws  of  France/;  The 
court  held,  that  the  endorsement  was  a  sufficient  authentication, 
inasmuch  as  it  was  given  in  reciprocation  of  a  donation  made  by 
congress,  to  France,  of  the  laws,  resolutions  and  treaties  of  the 
United  States. 

In  the  State  of  New  York,  the  Pievised  Statutes,  (/  provide  for 
the  formahties  of  enacting  laws  by  the  legislature,  the  duty  of 
the  Secretary  of  State  in  certifying  them,  and  indorsing  on  them 
the  day  of  their  passage,  delivering  such  laws  to  the  printer, 
and  the  time  when  it  became  a  law  ;  and  if  certified  by  the  pre- 
siding officers  of  the  senate  and  assembly  to  have  been  passed 
by  a  vote  of  two-thirds  of  the  members  elected  to  each  house, 
then  the  secretary  shall  add  to  his  certificate  the  words,  "  hj  a  iico- 
tJiird  vote,"  and  which  certificate  is  made  presumptive  evidence  of 
such  fact.  If  not  so  certified,  the  presumption  is  that  the  act  was 
not  passed  by  two-thirds  of  the  legislature.  Each  volume  of 
laws  printed  and  pubHshed  for  the  State  shall  contain  the  certi- 
ficate of  the  Secretary  of  State,  to  the  effect,  that  the  said  volume 
was  printed  imder  his  direction.  And  all  laws  passed  by  the  leg- 
islature, so  certified,  may  be  read  in  evidence  fi'om  the  volumes 
so  printed  under  the  directions  of  the  Secretary  of  State. 

By  the  provisions  of  the  Code  of  Procedure  of  this  State  (§  426), 
it  is  enacted,  that  printed  copies  in  volumes  of  statutes.  Code,  or 
other  written  laws,  and  of  the  proclamations,  edicts,  decrees  and 
ordinances  by  the  executive  power  of  any  State  or  tenitory,'  or 
foreign  government,  when  printed  in  books  or  publications  piu-- 
porting  or  proved  to  have  been  pubhshed  by  the  authority  thereof, 
or  proved  to  be  commonly  admitted  as  evidence  of  the  existing 

o  Robinson  v.  Cliffon,  2  Wash.  C.  C.  E.  1.     cEnnis  v.  Smith,  11  How.  401. 
b  Livingston  v.  Maryland  Ins.  Co.  G  Cranch.  G74. 
d  1  Kevised  Statutes,  Marg.  p.  157,  158. 


60  STATUTES  A^T>  THE  EYTDENCE  OF  THEM. 

law  in  tlie  courts  and  judicial  tribunals  of  such  State,  territory,  or 
government,  sliaU  be  admitted  by  tlie  courts  and  officers  of  this 
State,  on  all  occasions,  as  presumptive  evidence  of  such  laws,  pro- 
clamations, edicts,  decrees  and  ordinances. 

A  similar  provision  has  been  adopted  by  a  large  proportion  of 
the  States  of  the  union.  It  will  hardly  be  useful  to  go  through 
with  an  examination  of  the  enactments  of  the  diflfereut  States  in 
this  respect.  It  may  suffice  to  say,  that  before  these  statutes  of 
comity  were  passed,  and  in  those  States  where  no  similar  statute 
has  yet  been  enacted,  both  public  and  private  statutes  at  common 
law,  could  be  proved  by  the  seal  of  the  State,  or  country  whose 
law  is  thus  sought  to  be  proved,  a 

These  mutual  pro%isions  of  statute,  on  the  part  of  the  national 
and  State  legislatures,  are  supposed  to  arise  from  mutual  interest 
and  utihty,  as  a  kind  of  coui"tesy  and  comity  between  States,  and 
from  a  sense  of  the  gi'eat  inconveniences  that  would  result  from  a 
contrary  doctrine.  This  inconvenience  creates  a  kind  of  moral 
and  reciprocal  necessity  between  independent  States,  to  do  jus- 
tice to  others,  that  justice  may  be  done  to  them  inretui'n.  Espe- 
cially does  this  seem  to  be  demanded  between  sovereign  States, 
between  whom  commerce  has  introduced  frequent  and  intimate 
relations  of  extensive  intercourse.?^  The  intimate  union  of  these 
States,  as  members  of  the  same  gi'eat  pohtical  family,  mutually 
dependent  on  each  other  in  various  ways ;  the  deep  and  vital 
interests  which  bind  them  so  closely  together,  all  recognizing  one 
common  sovereign;  would  natm-ally  create  a  greater  degree  of 
comity  and  friendship  than  is  felt  between  foreign  nations. 
Therefore,  these  provisions  of  statute  comity  between  States.  It 
is  more  than  doubtful,  however,  whether  the  courts,  independent 
of  statute  provisions,  could  declare  or  establish  a  common  law 
comity  between  independent  States. 

The  law-making  power  of  the  United  States,  and  of  the  several 
States,  (as  in  most  other  civiHzed  governments,)  is  vested  in  the 
legislatures  or  representatives  of  the  people,  in  the  manner  pre- 

a  Dougherty  v.  Snyder,  15  Searg  &  Eawle,  87  ;  Story  on  Conft.  of  Laws,  530.  A 
sworn  copy  is  also  admissible.     Lincoln  v.  Battelle,  6  Wend.  482  ;  15  S.  &  K.  87. 

b  Blanchard  v.  Eussel,  13  Mass.  4  ;  Story  on  Confl.  of  L.  §  25  ;  Bank  of  Augusta 
V.  Earle,  13  Peters,  519. 


POWER  OF  ENACTING  STATUTES.  Gl 

scribed  by  theu'  fundamental  law.  This  power  of  enacting  laws, 
is  sometimes  called  tlie  sovereign  power,  but  it  is  not,  as  we  liave 
seen,  absolute  sovereign  power,  in  every  sense  or  meaning  of 
the  word  sovereignty,  when  appUed  to  the  authority  of  legislation 
under  American  written  constitutions."  When  ai:)plicd  to  other 
States  of  the  union  in  relation  to  each  other ;  or  to  the  national 
government  in  relation  to  foreign  governments ;  so  far  as  it  con- 
cerns the  question  of  independence,  the  legislative  power  may  be 
called  sovereign.  So  too  under  our  improved  system  of  govern- 
ment, hmited  by  constitutional  restrictions,  when  the  legislature 
is  acting  upon  subjects  within  its  constitutional  limits,  it  is  pos- 
sessed of  power  competent  to  regulate,  control  and  direct  the  w'iU 
of  the  whole  and  eveiy  subordinate  member  of  the  commvmity; 
and  in  this  respect  it  is  beheved  it  possesses  absolute  and  unlim- 
ited power,  incapable  of  being  controlled.'     Such  an  exercise  of 

Note  6. — Sovereignty,  as  applied  to  States,  imports  the  supreme,  absolute, 
nncoutrollable  power  by  which  auy  State  is  governed.  * 

•  1  Black.  Com.  49  ;  2  Dallas  R.  471  ;  Story  on  Const.  §  207. 

Note  7. — Coi;rts  arc  not  at  liberty  to  inquire  into  the  proper  exercise  of  power 
by  the  legislature,  in  a  case  where  the  latter  have  been  acting  within  their  con- 
stitutional limits.  They  are  bound  to  presume  that  the  legislatures  have  exercised 
the  proper  discretion.  It  is  no  part  of  the  duty  of  the  courts  to  enquire  iuto  the 
motives  which  actuated  the  legislature  in  the  passage  of  a  given  act,  though  fraud 
and  corruption  be  alleged.  The  courts  have  no  right  to  impute  to  the  legislature 
any  other  but  public  motives  for  their  acts.  In  People  v.  Draper,  15  N.  Y.  E.  545, 
the  court  said,  "  We  are  not  made  judges  of  the  motives  of  the  legislature,  and  the 
court  will  not  usurp  the  inquisitorial  office  of  inquiry  iuto  the  bona  fides  of  that 
body  in  discharging  its  duties."  See  also.  The  Sudbury  and  Erie  R.  E.  Co.  v. 
Cooper,  33  Penn.  St.  E.  282  ;  Ex  parte  Newmann,  9  Cal.  503. 

Fraud,  in  procuring  an  act  of  the  legislature,  either  by  means  of  fraudnkut 
representations,  or  by  concealment  from  that  body  of  material  facts,  whether  the 
act  be  public  or  jirivate,  cannot  be  impeached  in  the  courts.  Englishbee  v.  Hel- 
muth,  7  N.  Y.  Legal  Obs.  18G.  Nor  can  the  courts,  for  the  purpose  of  impeaching 
a  statute,  go  behind  the  records  to  enquire  iuto  the  regularity  of  the  proceedings 
of  the  legislature  in  passing  an  act.  The  People  v.  Develin,  33  N.  Y.  E.  2G9,  and 
authorities  cited. 

Note  8. — K  a  law  bear  upon  its  face  the  requisite  authentication,  it  is  jjresumed 
to  have  been  passed  by  the  necessary  constitutional  majority.  The  vote  by  which 
it  passed  cannot  bo  enquired  into.  Falconer  v.  Campbell,  2  McLean  E.  195  ; 
White  V.  How,  3  id.  111. 

Note  9. — If  an  act  be  constitutional,  and  clothed  with  the  forms  of  law,  the 
courts  cannot  inquire  into  the  motives  of  the  members  of  the  legislature  in  pass- 
ing it.     Fletcher  v.  Peck,  C  Cranch.  87. 


G2  rOWER  OF  ENACTING  STATUTES. 

powor,  it  lias  been  held,  is  so  conclusive,  tliat  tliougli  the  legisla- 
ture should,  through  misrepresentation  or  other  cause,  do  injustice 
to  an  iudi>-idual,  there  is  no  court  or  other  power  in  the  govern- 
ment, that  can  apply  a  remedy,  or  administer  relief,  a  Chancel- 
lor Kent,  in  his  commentaries  b  notices  this  distinction  between 
the  British  parliament  and  our  own  legislature.  He  says,  "  the 
principle  in  the  English  government,  that  parliament  is  omniijo- 
tent,  does  not  prevail  in  the  United  States ;  though  if  there  is  no 
constitutional  objection  to  a  statute,  it  is,  with  us,  as  absolute  and 
uncontrollable  as  laws  flowing  from  the  sovereign  power  under 
any  other  form  of  government." 

The  whole  law-maldng  power  of  the  State  is  vested  in  the  leg- 
islature, wdiich  is  omnipotent,  unless  restricted  by  the  express  or 
imphed  provisions  of  the  State  or  national  constitutions,  and 
where  the  power  is  so  vested  in  the  legislature,  and  unrestrained 
by  the  fundamental  law,  its  unvrise  legislation  affords  no  ground 
for  the  courts  to  nullify  it.c  But  their  power  is  restrained,  not 
only  by  the  provisions  of  the  State  constitution,  but  by  the  j^ow- 
ers  granted  by  the  people  of  the  several  States  to  the  general 
government ;  embodied  in  the  federal  constitution,  which  be- 
comes the  supreme  power,  within  the  scope  and  operation  of 
the  general  government.  The  latter  government  may  exercise 
these  powers  in  its  appropriate  departments,  free  and  unobstruc- 
ted by  any  State  legislation  or  authority ;  and  any  interference 
by  the  State  governments,  tending  to  the  interruption  of  the  full 
legitimate  exercise  of  the  powers  thus  granted,  is  in  conflict  with 
a  clause  in  the  federal  constitution  which  makes  that  constitution 
and  the  laws  of  the  United  States  made  in  pursuance  thereof,  the 
supreme  law  of  the  land,  d  The  State  legislatures,  however,  have 
power  under  their  constitutions,  to  alter  the  common  law  of  their 
States  ;e  but,  no  power  to  interfere  with,  or  adjudicate  upon  claims 
of  private  persons  or  municipal  corporations,/  nor  to  pass  any 
act  impairing  the  obligation  of  contracts,  or  to  interfere  with  the 
vested  rights  of  individuals.^ 

aNott  &  McCord'sR.  401  ;  1  Bald.  C.  C.  E.  71  ;  Fletcher  v.  Peck,  G  Crancb.  171. 

h  1  Kent  Com.  488  ;  Smith's  Com.  2G2. 

c  People  V.  Denniston,  23  N.  Y.  247  ;  Bank  of  Chenango  v.  Brown,  2G  N.  Y.  4G7; 
Luke  V.  City  of  Brooklyn,  43  Barb.  54  ;  Mr-tter  of  Wilson,  4  City  Hall  Eec.  47. 

d  People  V.  Commissioners  of  Taxes,  2  Black.  620.         e  1  Code  Rep.  49. 

/Baldwin  v.  Mayor  of  N.  Y.  42  Barb.  549.  g  Vroonum  v.  Jones,  5  How.  Pr.  R.SGO. 


LEGISLATIVE  rOV.'ER  AND  ITS  RESTRICTIONS.  bo 

The  wliolo  doctrine  ou  this  subject  of  legislation  under  tlie 
American  system,  is  reduced  to  this  ;  if  the  legislature  pur- 
sue the  authority  delegated  to  them  in  passing  statutes,  their 
acts  are  valid  and  conclusively  binding  ;  if  they  transcend  the 
bounds  of  that  authority,  their  acts  are  invalid,  and  of  no  force. 
In  the  former  case,  they  exercise  the  discretion  vested  in  them  by 
the  people,  to  whom,  (and  not  to  the  courts,)  they  are  responsible 
for  the  faithful  discharge  of  their  trust.  In  the  performance  of 
this  duty,  the  right  to  the  exercise  of  their  opinions  on  the  ques- 
tions of  natural  rights,  is  not  subordinate  to  the  judicial  will ;  in 
the  other  case,  if  they  violate  the  fundamental  law,  of  which  the 
courts  may  judge  ;  the  validity  or  invalidity  of  the  act  is  to  be 
determined  by  the  judges.a 

But  the  legislatm-e  of  each  sovereign  State  of  the  union,  has 
also  restrictions  of  its  sovereign  power  imposed  upon  it,  as  has 
been  stated,  other  than  such  as  may  be  found  in  its  own  consti- 
tution. She  is  also  a  member  of  the  American  union,  and  that 
union  has  also  a  constitution,  the  supremacy  of  which  all  acknow- 
ledge, which  imposes  hmits  to  the  legislative  powers  of  the  seve- 
ral States,  and  which,  none  can  claim  a  right  to  pass,  h  Besides 
conferring  specified  powers  upon  the  national  government,  the 
constitution  of  the  United  States  contains  also  certain  prohibitions 
upon  the  action  of  the  States,  a  portion  of  them  designed  to  pre- 
vent encroachments  upon  the  national  authority,  and  another 
portion,  to  protect  individual  rights  against  possible  abuse  of 
State  power,  c 

The  people  of  the  United  States,  in  adopting  that  instrument, 
doubtless,  had  the  object  in  view  of  shielding  themselves  and  their 
property  from  the  effect  of  sudden  and  violent  acts,  to  which  they 
might  be  exposed,  arising  from  local  or  party  feeling,  that  might 
aliect  legislative  power  in  the  several  States.  The  constitution  of 
the  United  States  also  contains  what  may  be  deemed  a  bill  of 
rights  for  the  people  of  each  State.  To  this  limited  extent,  the 
several  States  of  the  union,  cannot  be  absolutely  sovereign. 

The  theory  of  our  pohtical  system  is,  that  the  ultimate  sover- 
eignty is  in  the  people,  fi'om  whom  spring  all  legitimate  authority.rZ 

o  SmitU's  Com.  2G7.  c  Const.  U.  S.  Art.  1,  §  10.     U.  Art.  4. 

h  Marshall,  Ch.  J.  G  Cvaucli.  13G.       tZ  Jameson  on  Const.  Conventions,  Cli.  8. 


64  LEGISLATIVE  ^O^YER  AND  ITS  EESTKICTIONS. 

They  created  the  national  constitution,  and  conferred  upon  it 
powers  of  sovereignty  over  certain  subjects.  Upon  those  subjects, 
it  is  supreme.  They  have  also  created  State  governments,  upon 
which  they  conferred  the  remaining  powers  of  sovereignty,  so  far 
as  they  allow  them  to  be  exercised  at  all.  a 

To  this  extent  only,  it  seems  to  have  been  necessary  in  this 
place,  to  have  examined  the  authority  with  which  American  leg- 
islatiu'es  are  invested  in  the  enactment  of  statutes  ;  this  being  one 
of  the  special  subjects  of  this  work.  We  start  then,  with  this 
conceded  proposition  ;  that  the  people,  originally,  were  possessed 
of  aU  legislative  power ;  this  power  they  committed  to  theii*  res- 
pective State  legislatures,  in  unUmited  terms,  except  only  as  to 
such  hmitations  as  are  imposed  by  the  particular  constitution  of 
the  State  itself,  and  by  the  superior  restrictions  of  the  constitu- 
tion of  the  United  States,  h 

We  cannot  better  express  this  idea  of  the  powers  and  restric- 
tions of  the  law-making  power,  than  in  the  language  of  Denio,  late 
Chief  judge  of  the  Court  of  Appeals  of  this  State.  He  says,  "  The 
people,  in  framing  the  constitution,  committed  to  the  legislature 
the  whole  law-making  powers  of  the  State  Avliieh  they  did  not 
expressly  or  impliedly  withhold.  Plenary  jiower  in  the  legislature 
is  the  laile.  A  prohibition  to  exercise  a  particular  power,  is  an 
exception.  In  inquuing,  therefore,  whether  a  given  statute  j.s 
constitutional,  it  is  for  those  who  question  its  vahdity  to  show 
that  it  is  forbidden.  I  do  not  mean  that  the  power  must  be 
expressly  inhibited,  for  there  are  but  few  positive  restraints  upon 
the  legislative  power  contained  in  the  instrument.  The  first  arti- 
cle lays  down  the  ancient  limitations  which  have  always  been  con- 
sidered essential  in  a  constitutional  government,  whether  mon- 
archical or  popular ;  and  there  are  scattered  through  the  instru- 
ment a  few  other  provisions  in  restraint  of  legislative  authority. 
But  the  affirmative  prescriptions,  and  the  general  arrangements 
of  the  constitution,  are  far  more  fruitful  of  restraints  upon  tlie 
legislature.  Every  positive  direction  contains  an  imj)lication 
against  everything  contrary  to  it,  or,  which  would  frustrate  or 
disappoint  the  purpose  of  that  provision.  The  frame  of  the  gov- 
ernment, the  grant  of  legislative  power  itself ;  the  organization  of 

a  Cooloy  on  Const.  Lim.  8.  h  Leggett  v.  Hunter,  19  N.  Y.  E,  4.G3. 


LEGISI^\.TI\T   POWER  AND   ITS   KESTRICTIONS.  65 

executive  authority ;  the  erection  of  the  principle  courts  of 
justice;  create  iniphed  limitations  upon  the  law-making  authority, 
as  strong,  as  though  a  negative  was  expressed  in  each  instance  ; 
but  independently  of  these  restraints,  express  or  implied,  every 
subject  within  the  scope  of  civil  government,  is  liable  to  be  dealt 
with  by  the  legislature,  a 

The  question,  whether  a  law  is  void  for  repugnacy  to  the  con- 
stitution, is  at  all  times  a  question  of  dehcacy,  which  ought  sel- 
dom, if  ever,  to  be  decided  in  the  affirmative  in  a  doubtful  case. 
But  a  collet,  when  impelled  by  duty,  would  be  unworthy  of  its 
station,  if  it  should  be  unmindful  of  the  solemn  obhgations  which 
that  station  imposes.  But  it  is  not  upon  shght  implication  and 
vague  conjecture,  that  it  is  to  be  pronoimced,  that  the  legislatiu-e 
has  transcended  its  power,  and  that  its  acts  are  to  be  deemed  void. 
The  opposition  between  the  constitution  and  the  law  should  be 
such,  that  the  judge  feels  a  clear  and  strong  conviction  of  their 
incompatibility  with  each  other.Z>  But  this  branch  of  the  subject 
will  be  discussed  more  at  length  hereafter. 

It  is  not  unusual  for  a  legislative  act  to  involve  consequences 
which  are  not  expressed  in  it;  and  it  is  the  judicial  power,  which 
is  an  instrument  employed  by  government,  to  determine  how  those 
consequences  affect  individuals,  and  how  they  are  to  be  directed 
and  controlled  for  the  security  of  the  agents  who  are  called  upon 
to  execute  the  act.  "  Judicial  power,  as  contradistinguished  from 
the  power  of  the  laws,  has  no  existence.  Courts,  of  themselves, 
are  mere  instruments  of  the  law,  and  of  the  government,  and  can 
will  nothing.  When  they  are  said  to  exercise  a  discretion,  it  is  a 
mere  legal  discretion ;  a  discretion  to  be  exercised  in  discerning 
the  course  prescribed  by  law ;  and  when  that  is  discerned,  it  is 
the  duty  of  the  court  to  follo^\'  it.  Judicial  power  is  never  exer- 
cised for  the  pui-pose  of  giving  effect  to  the  will  of  the  judge ; 
always  for  the  purpose  of  giving  cHect  to  the  will  of  the  legisla- 
ture ;  or  in  other  words  to  the  will  of  the  law."  c 

It  would  be  a  task  which  no  law  writer  would  undertake,  to 
define  what  are  the  precise  hmits  within  which  a  legislature,  in 
its  discretion,  is  Umited,  when  they  keep  within  theii'  constitu- 

a  People  v.  Draper,  15  N.  Y.  E.  543,  1.  h  C  Cranch.  128. 

cPer  Marshall,  Ch.  J.,  Osborn  v.  U.  S.  Bank,  9  Wheat.  3GG. 

9 


G6  LEGISL.\.TIM3  TOYt'ER  AND  ITS  EESTKICTIONS. 

tional  bounds.  But  every  government  sliould  possess,  and  every 
constitutional  government  does  possess,  tlie  means  of  protecting 
itseK  and  its  citizens,  against  encroachments,  of  even  the  legisla- 
tive po-^-er,  upon  the  other  departments,  and  against  violations  of 
the  fundamental  law";  and  this  means,  is  the  judicial  power. 

Every  government  must,  in  its  essence,  be  imsai'e,  and  unfit  for 
a  free  people,  where  such  a  department  as  the  judicial  does  not 
exist,  with  powers  co-extensive  with  those  of  the  legislative  depart- 
ment. "What  for  instance,  would  avail  restrictions  upon  the 
authority  of  State  legislatures,  without  some  constitutfonal  mode 
of  enforcing  the  observance  of  them  ?  a  No  man  famihar  with  the 
exercise  of  power,  whose  experience  has  taught  him  the  frequency 
with  which  the  legislatm'e  have  overstepped  the  boundaries  of 
their  power,  can  do  otherwise  than  admire  the  pohtical  v/isdom 
of  that  system,  which  has  provided  a  department,  whose  powers 
are  co-extensive  with  that  of  the  legislature,  and  whose  duty  it  is 
to  restrain  and  correct  all  infractions  of  the  fundamental  law." 
Where  there  is  no  judicial  department  to  interpret,  pronounce, 
and  execute  the  law ;  to  decide  controversies,  and  to  enforce 
rights,  the  government  must  either  j^erish  by  its  own  imbecility, 
or  the  other  departments  of  government  must  usurp  powers,  for 
the  purpose  of  commanding  obedience,  and  this  would  be  the 
destruction  of  hberty.  h 

"  Laws,  however  wholesome  or  necessary,  are  frequently  the 
object  of  temporary  aversion,  and  sometimes  of  popular  resist- 
ance," It  requires  that  courts  of  justice  should  be  able  at  aU 
times  to  present  a  determined  countenance  against  ah.  Hcentious 
acts ;  to  deal  impartially  and  truly,  according  to  law,  between 
suitors  of  every  description,  or  whether  the  cause,  the  question, 
or  the  party,  be  popular  or  unpopular."  Nor  is  an  independent 
judiciary  less  useful  as  a  check  upon  the  legislative  power,  which 
is  sometimes  disposed,  from  the  force  of  party,  or  the  temptations 
of  interest,  to  make  a  sacrifice  of  constitutional  rights  ;  and  it  is  a 
wise  and  necessary  principle  of  our  government,  that  legislative 
acts  are  subject  to  the  severe  scrutiny,  and  impartial  interpreta- 
tion of  the  courts  of  justice,  who  are  bound  to  regard  the  consti- 

aFederalist,  Ko.  fcU.  b  1  Kent's  Com.  29G. 


W'UO  TO  INTERrRET  STATUTES.  67 

tutiou  aa  the  i^aramomit  law,  and  the  highest  eviclence  of  the  will 
of  the  people."  a 

The  power  of  interpreting  laws,  involves,  necessarily,  the  func- 
tion to  ascertain,  whether  they  are  conformable  to  the  constitu- 
tion, or  not ;  and  if  not  so  conformable,  to  declare  them  void  and 
inoperative.  As  the  constitution  is  the  supreme  law  of  the  land, 
in  a  conflict  between  that  and  the  laws,  either  of  Congress,  or  of 
the  States,  it  becomes  the  judiciary  to  follow  that  only,  which  is 
of  paramount  obhgation.  This  results  from  the  very  theory  of  a 
repubhcan  constitution  of  government ;  for  otherwise,  the  acts  of 
the  legislature  and  executive  would,  in  effect,  become  supreme  and 
iincontrolable,  notwithstanding  any  prohibitions  or  limitations 
contained  m  the  constitution ;  and  usurpations  of  the  most  une- 
quivocal and  dangerous  character  might  be  assumed,  without  any 
remedy  within  the  reach  of  the  citizen,  h  The  people  would  thus 
be  at  the  mercy  of  their  rulers  in  the  State  and  national  govern- 
ments ;  and  an  omnipotence  would  practically  exist,  like  that 
claimed  for  the  British  Parhament. 

To  the  people  at  large,  therefore,  the  institution  of  the  judicial 
department  is  j)eculiarly  valuable  ;  and  it  ought  to  be  eminently 
cherished  by  them.  On  its  firm  and  independent  structure,  they 
may  repose  with  safety,  while  they  perceive  in  it  a  faculty,  which 
is  only  set  in  motion  when  applied  to  ;  but  which,  when  thus 
brought  into  action,  must  proceed  with  competent  power,  if 
required,  to  correct  tlio  error  or  subdue  the  oppression  of  the 
other  branches  of  govemment.c  But  to  insure  a  complete  admin- 
istration of  public  justice  through  this  department,  and  to  give 
permanency  to  the  government,  the  judiciary  should  be  so  organ- 
ized as  to  carry  into  complete  effect,  all  the  purposes  of  its  estab- 
hshment.  It  must  possess  wisdom,  learning,  integi'ity,  independ- 
ence and  firmness.  It  must  at  once  possess  the  power  and  the 
means  to  check  usurpation,  and  enforce  execution  of  its  judg- 
ment.cZ 

'  Hence  it  is,  that  there  are  but  few  men  in  society  who  will  have 
sufficient  sldll,  learning,  firmness,  and  integi'ity,  qualities  all  com- 
bined in  one  person,  to  qualify  them  for  the  stations  of  judges. 

a  Id.  29i.  c  Eawle,  ou  the  Const  ch.  21. 

h  Federalist,  No.  78  d  Story,  on  Const.  §  1577. 


G8  DIVISIONS  OF  STATUTES. 


CnAPTER  III. 


DIVISIONS  OF  STATUTES.     DIFFEKENCE  IN  CONSTEUCTION  BETWEEN 
AJIERICAN  AND  FOEEIGN  COUNTEIES. 

Acts  of  parliament  are,  it  may  be  said,  again,  declaratory  of 
the  old  law,  or  introductive  of  new,  or  both  ;  as  by  the  addition 
of  greater  penalties,  the  destniction  of  particular  customs,  and  the 
hke.  Declaratory,  are  necessarily  in  their  terms,  affirmative  or 
negative.  Both  kinds  of  laws,  those  declared  and  affirmed,  as  well 
as  those  newly  enacted,  maybe  penal;  the  affirmance  of  the  ante- 
rior law  cannot  properly  be  styled  remedial.  A  subordinate 
division  of  remedial  acts  has  been  made  into  enabling  and  Dis- 

AJ3LING — ENLARGING  and  RESTRAIOTNG — statutes. 

And  first  of  declaratory  acts.  These  {in  England )  are  made 
where  the  old  custom  of  the  kingdom  is  almost  fallen  into  disuse, 
or  become  disputable,  in  which  case  the  parHament  has  thought 
proper,  in  perpetaum  rei  teslirnonivm,  and  for  avoiding  all  doubts 
and  difficulties,  to  declare  what  the  common  law  is  and  ever  hath 
been.  And  such  statutes  are  expressed  affirmatively  or  in  nega- 
tive terms.  A  statute  made  in  the  affirmative,  without  any  nega- 
tive expressed  or  implied,  does  not  take  away  the  common  law.  a 
It  follows  that  it  does  not  affect  any  prescriptions  or  customs 
clashing  with  it  which  were  before  allowed  ;  in  other  words,  the 
common  law  continues  to  be  construed  as  it  was  before  the  recog- 
nition by  j)arliament.^ 

a  2  Inst.  200  ;  1  Inst.  Ill,  115  ;  Harg.  &  Butler's  notes,  Co.  Litt.  115. 

Note  1. — A  declaratory  statute,  is  sometimes  intended  to  declare  the  meaning 
and  intent  of  a  pre-existing  statute.  This  kind  of  legislation  is  apt  to  create  a 
conflict  between  the  proper  functions  of  the  legislative  and-judicial  departments 
of  the  government ;  because  .<^.iich  statutes  are,  necessarily,  to  a  certain  extent, 
retrospective.  It  assumes  the  exercise  of  judicial  power,  in  determining  what  the 
law  was  before  the  declaratory  statute  was  passed..  In  this  they  exceed  their 
power,  and  invade  the  domain  of  judicial  authority.  This  kind  of  legislation, 
sometimes  happens  after  the  courts  in  the  due  exercise  of  their  legitimate  autho- 
rity, as  interpreters  of  the  law,  have  declared  the  meaning  and  intent  of  the  stat- 
ute to  be  otherwise  than  such  as  the  new  statute  d  eclares .  Without  referring  to  other 
cases,  a  single  instance  may  suffice.  The  legislature  of  New  York,  in  1853,  passed 
an  act  in  relation  to  the  liability  of  certain  insurance  companies  to  taxation,  the 
construction  of  which,  was  a  question  litigated  end  determined  in  the  courts.    In 


DIYISIOKS  OF  STATUTES.  69 

The  party  may  waive  his  benefit  by  such  affirmative  statute, 
and  take  his  remedy  by  the  common  hiw,a  -wliich  however  docs 
not  mean  that  the  statute  is  not  Ijindin;:!;,  I»ut  that  the  party  may 
take  his  election  which  to  jjroctjcd  ujx))!.  lu  hke  manner  an 
affirmative  statute  docs  not  repeal  an  affirmative  statute  ;  and  if 
the  substance  be  tliat  botli  may  stand  tof^cthcr,  they  shall  have  a 
concurrent  efficacy.  But  if  the  latter  be  contrary  to  the  former, 
it  amounts  to  a  repeal  of  the  former,  for  it  is  a  general  principle, 

a  Bi-o.  Tarl.  Tl.  70;  1  Rep.  CI;  Cro.  Eliz,  101, 
1855,  the  legislature  cuacted  a  law  dcclariug  the  iuteut  of  the  act  of  1853,  to  be 
different  from  the  iuteut  as  declared  by  the  courts  ;  such  judicial  decisions  had 
been  prououuced  and  were  pending  on  appeal  to  the  highest  court,  at  the  time 
of  the  enactment  of  the  declaratory  law.  The  Court  of  Appeals  declared  as  fol- 
lows :  "All  the  judgments  of  the  Supreme  Court  now  under  review,  were  rendered 
at  the  special  term  before  the  enactment  of  this  statute.  The  cases  since  that 
time  have  been  pending  on  appeal  before  the  general  term,  and  in  this  court ;  and 
were  so  pending  when  the  statute  was  enacted.  As  regards  these  cases,  the  man- 
date of  the  legislature,  if  it  has  any  api)lication,  miist  be  regarded  as  addressed 
to  the  ai^pellate  tribunals.  "We  habitually  look  with  great  respect  upon  all  acts 
of  the  legislature,  and  never  refuse  to  give  them  effect,  except  where,  upon  the 
fullest  consideration,  we  find  that  thej'  conflict  with  the  constitution.  The  act  in 
question,  considered  as  a  persuasive  argument  for  a  particular  construction  of 
the  statute  of  1853,  loses  much  of  its  weight  from  the  consideration  that  the  leg- 
islative bodies  had  been  rel^ewed  in  the  interval  between  the  two  enactments,  and 
that  but  a  few  of  the  members  of  the  legislature  of  1853  sat  in  that  of  1855.  But, 
if  that  were  otherwise,  we  should  feel  constrained  to  rely  upon  the  language  of 
the  statute  which  we  arc  called  upon  to  interpret,  rather  than  any  personal  assu- 
rance as  to  the  intention  of  its  members.  The  acts  of  the  legislature  do  not  rest 
in  any  respect  upon  oral  tradition.  They  are  committed  to  writing,  and  it  is  by 
the  written  language  that  their  sense  is  to  be  ascertained.  As  an  authoritative 
mandate  in  favor  of  the  construction  claimed  by  the  insurance  Company,  we  can- 
not accord  to  it  any  force  whatever.  In  the  division  of  power  among  the  great 
departments  of  the  government,  the  duty  of  expounding  icritten  laws,  has  been 
committed  to  the  judiciary.  The  legislature  has  no  judicial  power;  and  cannot 
upon  any  pretence,  interpose  its  authority  respecting  questions  of  interpretation 
depending  in  the  courts."  People  v.  Board  of  Supervisors  of  New  York,  16  N. 
Y.  E.  431,  2  ;  Dash  v.  Van  Kleeck.  7  John.  E.  477.  Nor  have  the  legislature  the 
power  to  make  the  opinion  of  the  Attorney  General  binding  upon  a  contractor,  as 
agent  of  the  state  prison,  upon  a  contract  previously  made.  Y'oung  v.  Beardslej', 
11  Paige,  93. 

Note  2. — Nor  would  a  statute  declaratorj-  of  the  common  law,  retroact  upon 
past  controversies,  or  reverse  decisions  which  the  courts  in  the  exercise  of  their 
undoubted  authority  have  made.  Cooley  on  Const.  Lim.  9-i.  This  would  be  a 
like  exercise  of  judicial  power,  which  if  tolerated,  might  constitute  the  legislature 
a  court  of  review  in  all  cases  where  disappointed  partisans  could  obtain  a  hoarintr. 
after  being  dissatisfied  with  the  rulings  of  the  court.     Id. 


70  DIYISIONS   or   STATUTES. 

that  "  leges  posteriores,  priorefi  contrarias  ahroganf."  But  this  is 
meant  of  a  case  where  a  statute  by  its  matter  necessarily  imphes 
a  negative,  for  an  act  of  parKament  may  be  repealed  by  the  ex- 
press words  of  a  subsequent  statute,  or  by  impHcation. 

Next  arises  the  consideration  of  those  statutes  which  obtain  the 
name  of  negative  statutes,  because  they  are  penned  in  negative 
terms  ;  as  the  statute  of  Marlbridge,  which  is  "  Non  idea  pnniatur 
Dominus  per  redemptionem  ;"  and  Magna  Cliarta,  "  Null  us  capiahir 
ant  imprisonctury  And  here,  the  rule  prevails,  that  if  a  subsequent 
statute,  contrary  to  a  former,  have  negative  words,  it  shall  be  a 
repeal  of  the  former  ;  and  a  negative  statute  it  is  said  too,  so  binds 
the  common  law,  that  a  man  cannot  afterwards  have  recourse  to 
the  latter  a. 

The  different  operation  of  affiimative  and  negative  statutes  is 
thus  illustrated :  If  a  statute  were  to  provide  that  it  slioidd  be 
lawful  for  tenant  in  fee  simple  to  make  a  lease  for  twenty-one 
years,  and  that  such  lease  should  be  good  ;  this  affirmative  stat- 
ute could  not  restrain  him  from  making  a  lease  for  sixty  years  ; 
but  the  lease  for  more  than  twenty-one  years  would  be  good, 
because  it  was  good  by  the  common  law,  and  to  restrain  him,  it 
ought  to  have  words  negative ;  as,  that  it  shcdl  no\  be  lawful  for 

a  Bro.  Pari.  pi.  72.. 

The  legisla  ure  may  within  their  legitimate  powers,  declare  what  the  law  shall 
be  in  future,  but  to  declare  what  the  law  is,  or  has  been,  is  the  province  of  the 
judiciary.  See  Greenhough  v.  Greenhough,  11  Penn.  St.  E.  494,  and  Eeiser  v. 
Tell  Association,  39  id.  137.  In  the  latter  case,  the  court  say  in  relation  to  such  a 
declaratory  act,  "It  is  the  interpretation  by  one  legislature  of  a  written  statute 
by  another,  and  therefore  an  adjudication  of  private  rights  that  have  arisen  under 
it.  And  yet  the  former  legislature  said  nothing  like  this,  and  nothing  from  which 
it  can  be  inferred.  The  legislature  have  no  such  authority  over  us,  to  change  the 
laws  of  language.  If  given  language  does  not  express  a  given  meaning,  they  may 
give  us  other  language  that  does  ;  but  this  will  not  change  the  meaning  of  former 
language.  In  the  very  nature  of  language,  this  is  impossible.  It  is  with,  and  by 
virtue  of  the  new  expressions,  that  we  get  the  new  meaning,  and  the  meaning  of 
the  law  is  the  law  itself,  and  the  law  can  be  no  older  than  the  effectual  expression 
of  it. 

Note  3. — A  decl-VEAToey  law,  founded  upon  a  mistaken  opinion  of  the  legisla- 
ture, though  inoperative  as  to  the  past,  may  operate  in  the  future.  P.  M.  Gen'l 
V.  Early,  12  "Wheat.  148.  A  declaration  of  the  legislature  as  to  what  they  intend- 
ed for  the  time  in  the  past  by  a  law,  docs  not  make  the  law  what  they  intended 
it,  if  they  are  in  error.  It  only  affects  it  in  the  future;  the  pa.st  law  is  to  be  deter- 
mined by  the  judiciary;  but  it  is  the  duty  of  the  courts  to  give  to  a  construing 
act  its  intended  practical  operation,  as  far  as  is  possible.  Bassett  v.  U.  S.  Nott 
&  Huntington  E.  418.  In  this  country,  where  the  legislative  power  is  limited, 
declaratory  laws,  so  far  as  they  operate  on  vested  rights,  cannot  change  the  rule  of 
construction  ftj<  to  a  pre-existing  law.     Salters  v.  Tobias,  3  Paige,  388. 


DIYISIOXS  OF  STAITTES.  71 

liim  to  make  a  lease  for  above  tAvent^'-one  }cais ;  or  that  a  lease 
for  more,  shall  not  he  good.* 

Upon  the  nile  itself,  a  nice,  abstniso,  and  diflicult  question,  and 
one  much  litigated,  arises. 

A  man  might  have  alleged  a  custom  against  the  common  law ; 
if  the  statute  be  only  declavutory  of  the  common  law,  shall  ho 
not,  in  like  manner,  prescril)e  against  the  statute?  Lord  Coke 
remarks  it  as  an  important  distinction  between  negative  statutes 
of  different  kinds,  that  where  they  are  only  aiUrmative  of  the 
ancient,  that  is  of  the  common  law,  there,  a  custom  will  equally 
■prevail  against  the  statute,  as  it  bt^fore  obtained  against  the  com- 
mon law.  a  Such  negative  statutes,  according  to  him,  cannot 
extend  the  common  law,  and  no  more  effect  is  given  to  them  than 
if  the  statut(?s  were  expressed  in  afKrmative  terms.  If  the  statute 
be  a  mere  affirmance,  or  declaration  of  the  common hnv — whether 
the  words  used  be  affirmative  or  negative,  can,  it  might  be  thought, 
substantially,  make  no  tlifierence.  The  one  it  is  reasonably  to  be 
presumed,  cannot  have  an  operation  more  extended  than  the 
other.  An  affirmative  statute,  it  is  unqualifiedly  laid  down,  does 
not  take  away  a  custom./;  Thus,  says  Lord  Coke,  the  statutes  of 
Wills  of  82  and  3-i  H.  8,  do  not  take  away  a  custom  to  devise 
lands,  as  it  hath  been  often  adjudged  ;  so,  a  negative  statute,  in 
affirmation  or  declaration  of  the  common  law,  may  be  prescribed 
against.  "  As  the  Statute  of  Magna  Charta  provideth  that  no 
lect  shall  be  holden  but  twice  in  the  year,  yet  a  man  may  pre- 
scribe to  hold  it  offener  at  other  times  ;  for  that  the  statute  was  but 
in  affirmance  of  the  common  law."  This  instance  of  Lord  Coke 
has  been  questioned,  and  seems  Hable  to  exception ;  it  possibly 
may  not  be  apt ;  but  gi-anting  that  it  is  doubtful,  the  objection 
applies  to  the  fitness  of  the  example,  and  not  to  the  force  of  the 
rule.  Another  illustration  is  (h'awn  by  Lord  Coke  from  the  forest 
laws.  "  The  statute  of  34  E.  1,  provideth  that  none  shall  cut 
down  any  trees  of  his  own  within  a  forest,  without  the  view  of 
the  forester ;  but  inasmuch  as  this  act  is  in  affirmance  of  the 
common  law,  a  man  may  prescribe  to  cut  down  his  woods  within 
a  forest  without  the  view  of  the  forester."  This  case  also  has 
been  impeached,  but  still  the  reason  and  good  sense  of  Lord 
Coke's  tlistinction  remains  unimpaired.  The  pertinent  inquiry 
still  to  be  made  is,  whether  the  provision  of  the  act  be  contrary 
to  the  former  law  ?  If  not,  the  common  laAV  continues  as  in  the 
case  of  affirmative  statutes,  to  be  constnied  as  before  its  recogni- 
tion,  and  the   maxim   consuctudo    lorivat   communcm  legem    still 

a   1  lust.  115.  6  1  Inst.  111. 

Note  4. — Where  there  are  two  q^rmoiire  statutes,  siich  parts  of  the  prior  stat 
lite  as  may  be  iucorporated  into  the  subsequent  statute,  as  consistent  with  it 
must  be  considered  in  force.    Davies  v.  Fairbairn,  .3  How.  U.  S.  K.  G36. 


72  DIVISIONS   OF  STATUTES. 

applies."  Tliis  is  wliere  tlic  statute  and  tlie  common  law  agree  , 
where  they  difier,  the  rule  is  clear  and  certain.  But  a  statute,  it 
is  api^rehended,  (and  hence,  perhaps,  some  confusion  of  ideas 
upon  the  subject,)  may  be  at  the  same  time  declaratory  of  the 
ancient  law  and  introductive  of  a  new.  AVhile  it  affirms  the  ccm 
mon  law,  it  may  annihilate  particular  customs  which  were  bei'oic; 
allowed  in  derogation  of  that  general  law.  The  distinction,  justly 
taken,  is  confined  to  such  statutes  as,  though  expressed  in  nega- 
tive terms,  are  merely  in  affirmance  of,  or  declaratoiy  of,  the 
common  law.  Cases  in  which  the  terms  of  the  statute,  fairly 
taken,  import  something  more ;  enlarging — restraining — qualify- 
iiig — or  in  anywise  varying  the  law, — do  not  apply.  But  this 
view  of  the  case,  consonant  as  it  is  to  reason,  and  not  unsuppor- 
ted by  authority,rt  cannot  fearlessly  be  pronounced  to  be  the  law. 
It  must  be  deHvered  as  doubtful.  It  is  the  questionable  doctrine 
of  the  latter  cases,6  that  no  prescription  or  custom  is  good  against 
a  negative  statute,  whether  it  be  declaratory  of  the  common  law, 
or  introductive  of  a  new  law ;  and  this  is  the  latest  decision. 

It  is,  as  a  maxim,  generally  true,  that  if  an  affirmative  statute, 
which  is  introductive  of  a  new  law,  direct  a  thing  to  be  done  in  a 
cfiiain  maimer,  that  thing  shall  not,  even  although  there  are  no 
negative  words,  be  done  in  any  other  manner.c  But  where  the 
question  was,  whether  an  appointment  of  overseers  made  after 
the  expiration  of  the  time  limited  by  the  statute  for  such  an 
appointment  was  valid  ?  It  was  held  to  be  so,  for  the  statute  (43 
Eliz.  cli.  4,)  ought  to  receive  a  liberal  construction  ;  it  was  not  in 
the  power  of  the  jiarish  to  compel  the  justices  to  make  an  appoint- 
ment within  the  time.  Although  the  statute  be  introductory  of  a 
new  law,  no  negative  ought  to  be  implied.'^/ 

If  a  new  power  be  given  by  an  affirmative  statute  to  a  certain 
person,  by  the  designation  of  that  one  person,  although  it  be  an 
affirmative  statute,  all  other  persons  are  in  general  excluded  from 
the  exercise  of  the  power ;  since  expressio  unins  est  exdnsio  alterhis. 
Thus,  if  an  action  founded  upon  a  statute  be  directed  to  be  brought 
before  the  justice  of  Glamorgan  in  his  sessions,  it  cannot  be 
brought  before  any  other  person,  or  in  any  other  place.c  So,  by 
the  Scotch  law :  "  statutory  provisions  cannot  be  supphed  by 
eqnipollents.''/" 

But  the  designation  of  a  certain  person,  to  whom  a  new  power 
is  given,  does  not  exclude  another  person  who  was  by  a  precedent 
statute  authorized  to  do  it,  from  doing  the  same  thing,  (j 

a  Harg.  and  Butl.  Co.  Litt.  115,  (a)  note  9.  2  Hawk.  P.  C.  c.  10,  s.  8. 

h  Lord  Lovelace's  case,  1  Jon.  271;  2  Bulstr.  36;  Shower,  420. 

c  Ilob.  298;  Sid.  56;  Stra.  1125;  2  T.  E.  395.  c/R.  v.  Sparrow,  Bott.  11. 

e  11  Hep.  59.     Foster's  case,  id.  61.  /Alison's  Practice  Scotch  Law. 

q  Foster's  case,  11  Kep.  39. 
*  So  the  Spanish  law  holds  that  a  custom  being  general  and  immemorial,    may 
alter  the  anterior  law.    L.  6,  Tit.  2  Partid.  1. 


DIYISIONS   OF  STATUTES.  73 

Laws  declaratory  in  name,  are  often  imperative  in  effect :  leg- 
islative, like  judicial  intei-jiretation  bein<^  i'reqiiently  decejotive, 
and  establisliiiig  new  law  under  ^lise  of  expounding  the  old.  Acts 
to  explain  laws,  ai'e  properly,  acts  of  interpretati(m  l)y  legislative 
authorit}',  or  to  l)orrow  an  expression  fi'om  tlio  writers  on  tlie 
lioman  law,  they  are  acts  of  auHientic  interpretation. a 

liepeal  acts,  are  revocations  of  former  statutory  laws,  authori- 
zing or  permitting  the  parties,  to  whom  the  repeal  extends,  to  for- 
bear from  acts,  which  they  were  before  commanded  to  do.  Hence, 
they  are  often  named  permissive  laws ;  or  more  briefly  poi'mis- 
sions.^ 

Remedial  acts  are  made  from  tinie  to  time,  to  supply  the  defects 
discovered  in  the  anterior  law,  whether  they  arise  from  the  gene- 
ral imperfection  of  all  human  laws ;  from  change  of  time  and  cir- 
cumstances ;  from  mistakes  and  unadvised  determinations,  or 
from  any  other  cause.  And  this  being  done,  either  by  enlarging 
the  ancient  law  when  it  was  found  too  narroAv,  or  restraining  it 
where  it  was  too  luxuriant,  occasioned  the  other  subdivision  into 
enlarging  or  restraining  statutes. 

A  rcmedidl  sialulc,  is  one  which  supplies  such  defects,  and 
abridges  such  superfluities  in  the  common  law  as  may  have  been 
discovered,?^  such  as  may  arise  either  from  the  imperfection  of 
all  human  laws,  from  change  of  time  and  circumstances,  from  mis- 
takes, and  uuad\'ised  determinations  of  unlearned  (or  even  learn- 
ed) judges,  or  from  any  other  cause  whatsoever  ;c  and  this  being 
done  either  by  enlarging  the  common  law,  where  it  was  too  nar- 
row and  circumscribed,  or  by  restraining  it  where  it  was  too  lax 
and  luxuriant,  has  occasioned  another  subordinate  division  of 
remedial  acts  into  enlarging  and  restraining  statutes.  So,  it  seems, 
that  a  remedial  statute  may  also  have  its  apphcation  to,  and  effect 
upon  other  existing  statutes,  and  gives  the  party  injured  a  rem- 
edy; in  other  words;  and  for  a  more  general  definition,  "it  is  a 
statute  giving  a  party  a  mode  of  remedy  for  a  wrong  where  he 
had  none,  or  a  different  one  before."cZ 

Such  a  statute,  it  is  universally  held,  is  to  be  liberally  construed, 
and  that  everything  is  to  be  done  in  advancement  of  the  remedy 

a  Austiu  ou  Jurisprudence.  61  Black.  Com.  86. 

c  Id.  d  Cliitt.  Black.  Com.  note  to  p.  8G. 

Note  5. — Though  the  provisions  of  two  acts  be  different,  a  general  statnto 
without  negative  wxi  is  will  not  repeal  a  previous  one,  which  is  particulur. 
Brown  v.  County  Commissioners,  9  Harris,  Penn.  37. 

10 


74:  DIVISIONS  OF  STATUTES. 

that  can  be  given  consistently  vith  any  construction  that  can  be 
put  upon  it.a 

A.  preceptive  statute,  is  one  which  commancTs  certain,  and  it 
regulates  the  forms  and  acts  which  ought  to  accompany  them.& 

A  prohibitive  statute  is  one  that  forbids  all  actions  which  disturb 
the  pubhc  repose,  or  injmy  to  the  rights  of  others,  or  crimes  and 
misdemeanors ;  or  when  it  forbids  certain  acts  in  relation  to  the 
transmission  of  estates,  or  the  capacity  of  persons  and  other 
objects,  c 

A  p-'r missive  statute,  is  one  which  allows  certain  actions  or 
things  to  be  done  without  commanding  them,  as  for  example — 
when  it  allows  persons  of  a  certain  description,  or  indeed  any 
person,  to  make  a  will. 

A  penal  statute,  is  one  which  imposes  a  forfeiture  or  penalty  for 
transgressing  its  provisions,  or  for  doing  a  thing  prohibited. 

A  temporary  statute,  is  one  which  is  limited  in  its  duration  at 
the  time  of  its  enactment.  It  continues  in  force  until  the  time  of 
its  Hmitation  has  expired,  unless  sooner  repealed. c^ 

A  perpetual  statute,  is  one  for  the  continuance  of  which  there 
is  no  limited  time,  although  it  be  not  expressly  declared  to  be  so. 
If,  however,  a  statute  which  does  not  in  itself  contain  any  limita- 
tion, is  to  be  governed  by  another  which  is  temporary  only,  the 
former  will  also  be  temporary  and  dependant  upon  its  existence 
of  the  latter.^ 

An  affirmative  statute,  is  one  which  is  enacted  in  affirmative 
terms.  Such  a  statute  does  not  take  away  the  common  law  in 
relation  to  the  same  matter./ 

A  negative  statute,  is  one  expressed  in  negative  terms,  and  so 
controls  the  common  law,  that  it  has  no  force  in  opposition  to  the 
statute.^/ 

A  prosjyectivc  statute,  is  one  which  regulates  the  future,  and  is 
the  only  one  which  can  be  just,  for  no  man  can  conform  himself 
to  the  law  which  is  yet  unknown  to  him.h 

a  Johns  V.  Johns,  3  Dow.  15  ;  Gillettv.  Moody,  3  N.  Y.  479;  People  v.  Euuklc, 
9  John.  E.  147. 

h  1  Bouviers  Inst.  48.  c  Id. 

d  Id.  e  Bac.  Abr.  Statute  D. 

/Jackson  v.  Bradt,  2  Caines  R.  1C9.  g-Bac.  Abr.  Statute  G. 

?.  Bouvier's  Inst.  49. 


DI^^SIO^'s  of  statutes.  75 

A  retrosjjcdive  statute,  is  one  "wliicli  is  made  to  operate  upon 
some  subject,  contract,  or  crime,  which  existed  before  its  enact- 
ment. 

These  laAvs  arc  generally  considered  unjust,  and  are,  to  a  cer- 
tain extent,  forbidden  by  that  article  of  the  constitution  of  tJio 
United  States  which  prohibits  the  passage  of  cxpod  fur  to  laws, 
or  laws  ini])airing  the  obligation  of  contracts. 

"We  shall  have  occasion  hereafter,  to  notice  the  incidents  of 
these  several  divisions  or  classes  of  statutes,  when  we  come  to 
treat  of  their  power  and  effect,  and  the  nilcs  of  construction  by 
which  they  are  governed. 

A  statute  which  gave  bishops  and  other  sole  ecclesiastical  cor- 
porations, (except  i^arsons  and  vicars,)  a  pov/er  of  leasing,  which 
they  did  not  possess  before,  viz.,  stat.  32  Hen.  8,  c.  38,  w-as  an 
enabling  statute.  The  stat.  13  Ehz.  c.  10,  which  afterwards  lim- 
ited that  power,  is,  on  the  contrary,  a  disabling  statute. 

Penal  statutes  are  acts  of  Parliament,  by  wliicli  a  forfeiture  is 
inflicted  for  transgressing  the  provision  therein  contained. 

A  ])enal  statute  may  also  be  a  remedial  law ;«  and  a  statute 
may  be  penal  in  one  part,  and  remedial  in  another  part.6 

Of  no  vaHdity  and  void  are,  it  is  alleged  :  1st,  such  acts  as  aiffect 
to  bind  future  Parliaments  f  2dly,  such  as  are  contrary  to  the 
laws  of  God  and  nature,  and  to  right  reason.  But  the  latter  doc- 
trine is  not  admitted  as  excepting  acts  fi'om  constraction,  though 
it  mil  decide  their  construction. 

As  to  the  former  proposition  it  is  clearl}^  maintainable  :  Subse- 
quent Parhaments  cannot  be  restrained  by  the  acts  of  former 
ones.  It  is  only  necessary  to  repeal  the  ordinance  to  destroy  the 
prohibition  ;  and  without  a  formal  repeal,  it  seems  that  the  act  is 
ipso  facto  void.  Some  parts  of  Magna  Charta,  although  it  be  ex- 
pressly declared  by  the  42  Ed.  3,  c.  2,  that  all  statutes  contrary 
thereto  shall  be  void,  have  been  repealed,  and  other  parts  have 
been  altered  by  subsequent  statutes ;  yet  such  latter  statutes, 
instead  of  being  thus  made  void  are  said  in  Jenkin's  Centuiies,  to 
have  been  constantly  held  to  be  in  force.c 

By  construction,  and  that  not  ahvays  sound,  things  declared 
void  by  statute  are  often,  it  will  be  seen,  only  voidable  at  the 

a  1  Wils.  12G.  h  Dong],  702-  c  Jenk.  Cent.  2. 

Note  G. — The  principle  cannot  be  controverted,  that  one  legislature  is  compe- 
tent to  repeal  any  act  which  a  former  legislature  was  competent  to  pass.  One 
legislatiire  cannot  abridge  the  powers  of  a  succeeding  one.*  Kut  if  an  act  be 
done  under  a  law  a  siicceeding  legislature  cannot  undo  it.  The  past  cannot  be 
recalled  by  the  most  absolute  power. 

*  Jlarshall.  Ch.  J.  G  Cranch  135  ;  ruffendorff,  B.  1,  Chap.  1,  §  G. 


76  DIYISIONS   OF  STATUTES. 

election,  or  on  the  active  motion  of  tlie  party  to  be  affected  by 
them. 

An  act  of  Parhament  shall  not  change  the  laws  of  nature,a  for 
jura  naturae  sunt  iimmdaUlia,  and  they  are  leges  legem.  ^^'' Nee 
vero  2'x^y  scnatum  cad  per  jMjndum,  solvi   hoc  lege  ;possimns"  says 
Cicero.     "  The  law  of  nature  stands  as  an  eternal  rule  to  all  men," 
says  Locke, "  legislators  as  well  as  others,  and  the  rules  that  they 
make  for  other  men's  actions  must,  as  well  as  then'  own  and  other 
men's  actions,  be  conformable  to  the  will  of  God,  of  which  tliat  is 
a  declaration.     If  a  statute  says  that  a  man  shall  be  a  judge  in 
his  own  cause,- such  a  law  being  contrary  to  natural  equity,  shall 
be  void.     Such  was  the  (at  least  intrepid,)  opinion  of  Lord  Chief 
Justice  Hobart,  in  Day  and  Savage.     Influenced  by  the  same 
powerful  sense  of  justice,  Lord  Coke,  when  Chief  Justice,  in  Bon- 
ham's  case,6  unguardedly,  perhaps,  but  fearlessly,  declared,  that 
where  an  act  of  Parhament  is  against  common  right  or  reason,  or 
repugnant,  or  impossible  to  bo  performed,  the  common  law  shall 
cont?ol  it,  and  adjudge  it  to  be  void.     And  Lord  Holt,  in  the  case 
of  the  City  of  Londonc  and  Wood,  to  the  dismay  of  all  mere  law- 
yers, manfully  expressed  an  opinion,  that  the  observation  of  Lord 
Coke  was  not  extravagant,  but  was  a  very  reasonable  and  true 
saying.     There  is  reason  to  believe  that  what  Lord  Coke  said  in 
his  Pieports  upon  this  sul^ject,  is  part  of  what  King  James  alluded 
to,  when  he  said  that  "  in  Coke's  lieports  were  many  dangerous 
conceits  of  his  own,  uttered  for  law,  to  the  prejudice  of  the  crown, 
parhament,  and  subjects."     Lord  Ellesmere,  in  his  observations 
on  Lord  Coke's  Pieports,  calls  this  passage  "  a  paradox  which 
derogateth  much  from  the  wisdom  and  power  of  Parhament,  that 
when  the  three  estates.  King,  Lords,  and  Commons,  have  spent 
their-  labor  in  making  a  law,  three  judges  on  the  bench  shah  de- 
stroy and  frustrate  their  pains,  advancing  the  reason  of  a  partic- 
ular court  above  the  judgment  of  aU  the  realm.     Besides,  more 
temperately,  did  that  reverend  Chief  Justice,  Herle,  temp.  E.  3, 
dehver  his  opinion,  8  E.  3,  cited  by  Co.  Rep.  11,  /.  98,  when  he 
said — some  acts  of  Parhament  are  made  against  law  and  right ; 
which  they  that  made  them  percei^dng,  would  not  put  them  into 
execution ;  for  it  is  magis  congrunm  that  acts  of  Parhament  should 
be  con-ected  by  the  same  pen  that  drew  them,  than  be  dashed  to 
pieces  by  the  opmion  of  a  few  judges."  So,  Sir  W.  Blackstonec?  con- 
hnes  the  i-ule  of  avoidance  of  unreasonable  statutes,  to  any  absm^d 
consequences  which  arise  out  of  them  collaterally.     The  judges, 
he  says,  are  in  decency  to  conclude  that  this  consequence  was  not 
foreseen  by  the  Parhament,  and  only  quoad  hoc  to  disregard  it. 

a  Hobart,  87,  c  12  Mod.  687. 

6  8Kcp.  116.  dlComm.91. 

*  Lib.  2,  C.  11,  §  35,  and  see  Hooker's  Ecclesiastical  Polity,  1,  and  Bishop  Cum- 
berland's Be  Luge  Naturae. 


/ya/^^^^ 


DIVISIONS  OF  STATUTES.  "T? 


If  the  Parliament  will  positivelj  enact  anything  to  be  done  wliicli 
is  unreasonable,  ho  knows,  he  says  of  no  power  in  the  ordinary 
forms  of  the  constitution  that  is  vested  with  authority  to  control 
it. 

But  the  advocate  of  natural,  as  opposed  to  positive  or  instituted 
law,  may  inquire  what  is  intended  by  contrarij  to  reason  ?  Is  not 
Lord  Coke  to  be  taken  to  mean,  not  merely  capricious  and  with- 
out cause ;  absurd  and  even  mischievous ;  but  contrary  to  the 
law  of  nature,  which  wo  discover  by  the  use  of  reason;  to  that 
light,  distinct  fi'om  revelation,  by  which  wo  discern  the  bounda- 
ries of  right  and  wrong?  and  then,  our  admirable  commentator 
has  himself,  in  another  place,  declared  :  "  No  human  laws  are  of 
any  validity  if  contrary  to  the  huvs  of  natui-e."  An  instance  is 
fomid  in  the  books,  m  Avhich  on  the  general  doctrine  that  statutes 
contrary  to  common  right  and  reason,  Sec,  are  void,  and  the  posi- 
tion from  B[ol)!irt  being  cited,a  the  judges  observed,  that  they 
would  not  hold  a  statute  to  be  void,  unless  it  were  clearly  con- 
trary to  natural  equity ;  adding  with  more  of  force  perhaps,  than 
of  dignity,  that  they  would  strain  hard  rather  than  hold  a  statute 
to  be  void.  Does  it  not  follow  as  an  irresistible  inference,  that  if 
the  statute  he  clearly  contrary  to  natural  equity, — if  it  impugn 
that  original  law"  which  is  coeval  with  our  nature,  and  has  God 
for  its  author,  the  judges,  (according,  at  least,  to  the  feelings  of 
those  presiding  on  that  occasion,)  must,  with  whatever  reluctance 
— however  averse  to  defeat  a  statute,  their  duty  requires  them — 
to  declare  it  void  !  Jiut  sa}'  their  enUghtened  opjionents,  to  do 
this  would  be  to  set  the  judicial  power  above  the  legislative. 
Upon  which  two  observations  may  be  made  :  first,  this  argument 
seems  to  prove  too  much ;  for  it  applies  as  strongly  to  setting 
aside  the  collateral  as  the  direct  consequences  of  an  act ;  and  if 
the  one  take  place,  (barring  the  objection  to  the  indecency  of  sup- 
posing it  necessary,)  why  not  the  other :  secondly,  Lord  Coke 
does  not  leave  the  decision  to  be  governed  "  by  the  crooked  cord 
of  the  discretion  of  the  judges  ; "  but  it  is  to  be  "  measured  by  V^JM^ 
the  golden^metwand  of  the  law;" — he  says  it  shall  be  controlled  p'C^  , 
by  the  common  law.  To  pronounce  such  a  decision  is,  on  the  part  <^ 
of  the  judges,  notlimg  more  than  to  say,  vast  as  is  the  power  of  '^-''' 
an  act  of  Parliament,  there  are  some  things  which  it  cannot  do. 
It  can  do  no  wrong ;  it  cannot  abrogate  those  hving  laws  imprin- 
led  in  our  hearts  from  the  commencement  of  our  being.  In  the 
conceivable  and  barely  possible  case  of  a  statute  directing  the 
commission  of  an  offence  against  the  law  of  natui'e,  can  there  be 
a  doubt  that,  in  such  instance,  no  human  laws  would  be  in  any 
degree  binding?  or,  what  amounts  to  tile  same  thing,  that  there 
exists  a  precedent  and  paramount  obligation  to  disobey  them  ? 
A  statute  cannot  make  it  lawful  to  commit  adultery  with  the  T\dfe 

a  10  Mod.  115. 


78  DIVISIONS  or  statutes. 

of  B.,  for  the  law  of  God  forbids  it.  Neitlier  arc  positive  laws, 
even  in  matters  seemingly  indifferent,  any  fiu'ther  binding  than  as 
they  are  agreeable  to  the  laws  of  God  and  nature.a 

On  the  other  hand,  it  is  said,  that  though  the  imnciple  asserted 
above  is  undeniably  true,  yet  the  application  of  it,  and  the  con- 
clusion, are  most  dangerous.6  It  is  certain  that  no  human  author- 
ity can  rightfully  infringe  or  abrogate  the  smallest  particle  of  nat- 
ural or  divine  law;"^-'  but  we  must  distinguish,  it  is  observed, 
between  right  and  power,  between  moral  iitness  and  political 
authority.  It  must  not  be  entertained  as  a  question  of  ethics, 
but  of  the  bounds  and  hmits  of  legislative  power.  All  that  can 
be  done,  it  seems,  is  to  follow  the  philosophical  advice  of  Locke, 
who  says,  that  if  the  magistrate  shall  enjoin  anything  unlawful  to 
the  conscience  of  a  private  person,  such  private  person  is  to 
abstain  from  the  action  that  he  judges  unlawful,  and  he  is  to 
undergo  the  punishment,  which  it  is  not  unlawful  for  him  to  bear. 
The  same  acquiescence  in  the  laws  is  enjoined  in  the  admirable 
dialogue  of  Plato,  entitled  Crito. 

The  English  lawyers  adopt  a  more  ca,utious  and  a  very  character- 
istic mode  of  proceeding.  They  do  not  inculcate  implicit  obedience 
to  a  law  wliich  leads  to  absui'd  consequences,  or  to  an  infraction 
of  the  natural  or  Divine  law ;  neither  do  they  proclaim  the  law 
itseh',  (which  may  be  immoral,  but  cannot  be  illegal),  of  no  valid- 
ity, and  null  and  void.  They  only  hold  it  inappHcable,  and  de- 
clare that  the  particular  case  is  "  excepted  out  of  the  statute."  A 
practical  mode  of  deahng  with  cases  where  statutes  collaterally 
give  rise  to  absurd  consequences,  on  the  ground  of  such  conse- 
quences being  unforeseen,  which  cannot  be  denied  to  be  reason- 
able. 

The  general  and  received  doctrine  certamly  fs,  that  an  act  of 
Parhament,  of  which  the  terms  are  exphcit  and  the  meaning 
plain,  cannot  be  questioned,  or  its  authority  controlled,  in  any 
court  of  justice.  Yet  Sir  Edward  Coke,  manfuUy,  if  not  convinc- 
ingly, defended  his  opinion  before  the  council,  and  said  :  "  If  an 
act  of  Parliament,  were  to  give  to  the  lord  of  a  manor,  conusance 
of  all  pleas  arising  within  his  manor,  yet  he  shall  hold  no  plea 
whereunto  himself  is  a  party ;  for  iniquum  est  aliquem  sicce  rei, 
essejudicem.'''  Now,  Sir  E.  Coke  had,  in  his  Second  Institute,  put 
the  same  case,  enlarged  upon  and  illustrated  it ;  and  successfully 

a  Fonbl.  cli.  1,  s.  3.  Jurispradence,  36  and  43. — Bl.  Com.  vol.  i. 

h  1  Woodison's  Lect. — do  Elements  of  a?ife. 

*  Among  the  seven  maxims  or  virtues  essential  to  the  written  law  of  Spain,  one 
is,  "that  its  precepts  ought  to  be  respecting  things  r/ood,  reasonable,  just,  and  not 
opposed  to  tlie  law  of  God,"  to  attain  its  only  object,  justice,  which  is  rooted  virtue 
— ra'ujada  virtud.—Ll.  1  and  ^,  Tit.  1  Fatrld.  1,  L.  1,  Tit.  1,  P.  3 —So,  the  unwrit- 
ten law,  {nso,  cosiumhre,  yfuero)  receiving  its  authority  Irom  the  express  or  tacit 
consent  of  the  supreme  power,  that  consent  cannot  be  supijosed  or  presumed 
when  the  custom  is  opi^osed  to  Hie  law  of  God,  to  good  reason ;  to  the  laic  of  the 
kingdom,  and  to  natural  laic. — L.  5,  Tit.  2,  Patrid.  1. — L.  3,  37/.  1,  Lib.  2,  liecob. 


POWERS  OF  THE   SEVEE.\X,  DEr.UlTMENTS.  79 

contended,  that  the  case  must  bo  coiTcctly  interpreted  to  be  ex- 
empted out  of  the  provisions  of  the  statute ;  that  a  contrary  con- 
struction could  not  be  within  the  meaning  of  the  act.  The  law, 
therefore,  was  to  be  properly  construed  not  to  apply  to  such  cases ; 
but  the  law  itself  was  not  to  be  held  void.  See  post,  "  Cases 
excepted  out  of  statutes,"  "  Fit  autein,  mm  tollendo  Icjis  obliga- 
tloucin,  svd  dcdarando  l('(/a)it  in  a-rto  casu,  non  op  plica  re."  a 

The  principle  as  to  the  binding  efficacy  of  statutes,  does  not 
prevail  in  the  United  States  of  America.  There  they  hold,  that 
as  there  is  a  written  constitution,  designating  the  powers  and 
duties  of  the  legislative,  as  well  as  of  the  other  departments  of 
the  government,  an  act  of  the  legislature  may  be  void,  as  being 
against  the  constitution. />  The  judicial  department,  say  they,  is 
the  proper  power  in  the  government  to  determine  whether  a  stat- 
ute, be  or  be  not  constitutional.  The  inteiiDretation  or  construc- 
tion of  the  constitution,  is  as  much  a  judicial  act,  and  requires  the 
exercise  of  the  same  legal  discretion  as  the  interpretation  or  con- 
struction of  a  law.  To  contend  that  the  courts  of  justice  must 
obey  the  requisitions  of  an  act  of  the  legislature,  when  it  appears 
to  them  to  have  been  passed  in  violation  of  the  constitution, 
would  be  to  contend  that  the  law  was  superior  to  the  constitution, 
and  that  the  judges  had  no  right  to  look  into  the  latter,  and  to 
i-egard  it  as  the  paramount  law.  It  has  accordingly  become  a 
settled  principle  in  the  legal  policy  of  the  United  States,  that  it 
belongs  to  the  judicial  power,  as  a  matter  of  right  and  of  duty,  to 
declare  every  act  of  the  legislatm-e  made  in  violation  of  the  con- 
stitution, or  any  provision  of  it,  null  and  void.o  But  this  question 
will  be  more  appropriately  examined  ifi  a  futm'e  chapter. 

So,  also,  in  the  United  States,  the  rale  is,  that  the  courts  cannot 
declare  a  legislative  act  void,  because  it  conflicts  with  their  opin- 
ion of  natural  rights,  of  policy,  expediency,  or  justice.'     The 

a  Grotius.  h  Kent  Com. 

c  1  Kent  Com.  318  ;  Id.  330,  423,  C. 

XoTE  7.— If  Congress  or  a  State  legislature,  pass  a  law,  within  the  general  scope 
of  their  constitutional  power,  the  courts  cannot  pronounce  it  void,  merely  because 
in  their  judgment  it  is  contrary  to  the  principles  of  natural  justice.  Calder  v. 
Bull  3  Dall.  399;  Mingo  v.  Gilmour,  1  Car.  L.  Kepos.  34  ;  Albee  v.  May,  2  Paine, 
71;  Bealev.  Woodhull,  Pet.  C.  C.  E.  2;  Macomber  v.  Mayor  of  New  York,  17, 
Abbott  35;  People  v.  Huntington,  4N.  Y.  Leg.  Observ.  182.^ 

8. — "  All  the  courts  can  do  with  odious  statutes,  is  to  chasten  their  hardness  by 
construction.  Such  is  the  imperfection  of  the  best  human  institutions,  that, 
mould  them  as  we  may,  p-  large  discretion  miistbe  reposed  somewhere.  The  safest, 
and  in  many  cases  the  best  security,  is  in  the  wisdom  and  integrity  of  public 
servants,  and  their  identity  with  the  people."  Beebe  V.  State,  6  Ind.  E.  528; 
Johnson  V.  Commonwealth,  1  Bibb.  E.  603.  "If  the  legislature  should  pass  a 
law,  in  x^lain  and  unequivocal  language,  within  the  scope  of  their  constitutional 


80  POWERS   OF  THE   SETEILVL.  DEPiUlTMENTS. 

courts  are  not  guardians  of  tlie  rights  of  tlie  people  of  tlie  State 
in  tlicsc  respects  unless  those  rights  are  secured  by  some  consti- 
tutional provision  which  comes  within  their  judicial  cognizance. 
The  only  remedy  left  to  the  people  for  imreasonable,  unwise,  or 
oppressive  legislation,  is  by  appeal  to  the  justice  and  patriotism 
of  the  representatives  of  the  people.  If  this  appeal  fails,  the 
evil  remains,  imtil  the  people  in  their  sovereign  capacity  correct 
it,  by  selecting  more  just  and  faithful  representatives.a 

We  have  no  code  of  laws,  supreme,  and  paramount  to  the  leg- 
islative power,  which  defines  the  laws  of  nature,  and  by  virtue  of 
which,  the  .  courts  can  declare  a  legislative  act  void  for  its  want 
of  conformity  to  such  natural  law.&  If  it  was  in  the  power  of 
the  courts  to  declare  a  State  law  void,  which  conflicts  with  no 
constitutional  provision  on  account  of  its  supposed  injustice,  or 
oppressive  operation,  or  its  conflict  with  natural  rights,  the  courts 
would  become  makers  mstead  of  expounders  of  the  law.  Their 
opmions  would  not  be  a  judgment  upon  what  was  the  prcrcxisting 
law,  but  upon  what  it  is  after  they  have,  amended  or  modified  it 
so  as  to  meet  their  ideas  of  reason,  of  justice,  policy,  or  wise  leg- 
islation. This  could  only  be  done  by  a  direct  usurpation  of  the 
legislative  power,  and  a  flagrant  violation  of  judicial  duty.c 

There  are,  it  is  true,  in  our  books  of  reports,  various  dicta,  fol- 
lowing the  Enghsh  rule,  that  acts,  contrary  to  the  principles  of 
right  and  reason  are  void,  d  but  they  are  not  now  followed  as 
authority.  In  the  highest  court  of  the  State  of  New  York,  in  the 
case  of  Cochran  v.  Van  Surlay,  e  it  was  declared  in  the  leading 
opinion,  "  that  it  was  only  in  express  constitutional  provisions, 

a  1  Baldwin  Pi.  7-i.  &  Bennett  v.  Boggs,  1  Baldwin,  74. 

c  Smith's  Com.  261. 
d  Eegents  of  University  v.  Williams,  9  Gill,  and  Johnson  3G5;  also,  opinion  of 
Chase  J.  in  Calderv.  Bull,  3  Dallas,  388  ;  1  Bay.  152.     Goshen  v.  Stonnington,  4 
Conn.  22.3. 

e  20  Wend.  382. 
power-s,  I  know  of  no  authority  in  this  government  to  pronounce  such  an  act  void, 
merely  because  in  the  opinion  of  the  judicial  tribunals,  it  was  contrary  to  the 
Ijrinciples  of  natural  justice;  for  this  would  be  vesting  in  the  court  a  latitudina- 
rian  authority  which  might  be  abused,  and  would  necessarily  lead  to  collisions 
between  the  legislative  and  judicial  departments,  dangerous  to  the  well-being  of 
society,  or  at  least  not  in  harmony  with  the  structure  of  our  ideas  of  natural  gov- 
ernment."   Commonwealth  v.  McCloskey,  2  Eawle.  E.  374. 


POWERS  OF  THE  SEMiRAL  DEPARTMENTS.  81 

iimitiijg  legislative  power,  and  coutroling  the  temporary  will  of 
the  majority  by  a  permanent  and  paramount  law  settled  by  the 
deliberate  wisdom  of  the  nation,  that  a  safe  and  solid  gi-ound  f<n- 
the  authority  of  courts  of  justice  could  be  found,  to  declare  void 
any  legislative  enactment.  Any  assumption  of  authority  beyond 
this,  would  be  to  place  in  the  hands  of  the  judiciary,  powers  too 
great  and  too  undefined,  either  for  its  own  secm'ity,  or  for  the 
pn^tection  of  private  rights."  In  order  to  guard  against  .so  gi-eat 
an  evil,  it  has  been  the  policy  of  all  the  American  States  that 
have  formed  written  constitutions  since  the  revolution,  and  of  the 
people  of  the  United  States  when  they  framed  the  federal  con- 
stitution, to  define  with  jorecision,  the  objects  of  legislative  power, 
and  to  restrain  its  exercise  within  marked  and  settled  boundaries. 

The  ideas  of  natural  justice,  are  not,  and  cannot  be,  regulated 
by  a  fixed  standard.  The  ablest  and  purest  men  have  difTered, 
and  ever  will  differ,  on  such  a  subject.  The  legislature  possess, 
certainly  an  equal,  if  not  a  superior  right,  to  the  coui'ts,  to  deter- 
mine, by  tlidr  opinion,  what  laws  arc  consistent  with  the  abstract 
principles  of  natural  justice.  That  the  necessity,  and  degree  of 
necessity,  for  passing  a  law,  not  prohibited  by  the  constitution, 
is  a  question  of  legislative  discretion,  and  not  of  judicial  cogni- 
zance, was  held  by  Ch.  J.  Marshall,  in  McCulloch  v.  State  of 
Maryland,  a  It  is  not  a  sufficient  argument  that  this  power  may 
be  abused  by  the  legislature.  It  is  an  equally  forcible  argument 
to  say  the  same  thmg  as  to  the  power  of  the  courts.  Such  is  the 
nature  of  all  power.  The  abuse  of  power,  is  the  tendency  of  all 
human  institutions.  We  must  be  content  to  Umit  power  where 
we  can.  Under  our  system  of  regulated  power,  as  well  as  of  reg- 
ulated liberty ;  we  must  be  content  to  repose  in  the  confidence, 
that  in  our  American  government,  we  are  as  free  fi'om  danger  of 
abuse,  as  imder  any  other  form  of  government  that  ever  did 
exist.  Z>' 

Chief  Justice  Marshall,  at  an  early  day,  expressed  his  views  on 
this  question,  in  an  action  between  two  indi^'iduals,  claiming  under 
an  act  of  the  legislature,  in  which  action,  corruption  on  the  part 

a  4  Wheat  R.  316.  h  Cakier  v.  Bull,  3  Dall.  4U0. 

Note  9 . — The  moral  tendency  and  inexpediency  of  a  statute  is  a  question  lor 
the  legislature,  not  for  the  court.  Per  Taney  Ch.  .J.  Brevrerv.  Blougher,  14. Pet.  198. 
11 


82  rOWEKS   OF   THE   SEVERAL  DEPARTMENTS. 

of  the  legislature  was  alleged,  in  the  passage  of  the  act.  He 
said,«.  "  This  solemn  question  cannot  be  brought  thus  collaterally 
before  the  court.  It  would  be  indecent,  in  the  extreme,  upon  a 
private  contract  between  two  individuals,  to  enter  iato  an  enquiry 
respecting  the  corruption  of  the  sovereign  power  of  a  State.  If 
the  title  be  plainly  deduced  from  a  legislative  act,  which  the  leg- 
islature might  constitutionally  pass ;  if  the  act  be  clothed  with  all 
the  requisite  powers  of  a  law ;  a  court,  sitting  as  a  court  of  law, 
cannot  sustain  a  suit  brought  by  one  individual  against  another, 
founded  on  the  allegation  that  the  act  is  a  nullity,  in  consequence 
of  the  impure  motives  which  influenced  certain  members  of  the 
legislature  who  passed  the  law." 

The  wisdom  of  man  has  never  conceived  of  a  government  with 
power  sufficient  to  its  legitimate  ends,  and  at  the  same  time  inca- 
pable of  mischief.  No  political  system  can  be  made  so  perfect 
that  its  rulers  will  always  hold  it  to  the  true  course.  In  the  very 
best,  a  great  deal  must  be  trusted  to  the  discretion  of  those  who 
administer  it.  In  ours,  the  people  have  given  larger  powers  to 
the  legislature,  and  rehed  for  the  faithful  execution  of  them,  on 
the  wisdom  and  honesty  of  that  department,  and  on  the  direct 
accountability  of  the  members  to  their  constituents.  There  is  no 
shadow  of  reason  tor  supposing  that  the  mere  abuse  of  power  was 
meant  to  be  corrected  by  the  judiciary.?* 

The  soundest  rule  on  this  subject,  it  is  beheved,  is,  that  the 
legislative  departments  of  government  are  co-ordinate,  and  of 
equal  dignity  with  the  executive  and  the  judicial  departments ; 
each  is  alike  supreme  in  the  exercise  of  its  proper  functions  ;  and 
cannot  directly  or  indirectly,  while  acting  within  the  limits  of  its 
authority,  be  subjected  to  the  control  or  supervision  of  the  other, 
without  an  unwarrantable  assumption  by  that  other,  of  power, 
which,  by  the  constitution,  is  not  conferred  upon  it." 

The  American  constitutions  are  supposed  to  apportion  the 
powers  of  government  between  the  three  departments,  executive, 

aFletclicr  v.  Peck,  G  Cranch.  131. 

h  Sharpless  v.  Mayor,  &c.  21  Penn.  St.  R.  102. 

Note  10. — A  prudent  and  discreet  judge,  is  one  that  does  not  judge  statutes  to  (jt> 
void  because  lie  considers  them  against  common  right  and  reason,  but  leaves  Par- 
liament to  judge  what  is  common  right  and  reason.     Dwarris,  481. 


POWELS   OF  THE   SEYEILVL  DEPAETMENTS.  83 

legislative,  and  judicial ;  l)ut  does  not  make  either  subordinate  to 
the  other  when  exercising  the  trust  committed  to  it.  The  courts, 
it  is  true,  may  declare  legislative  enactments  unconstitutional  and 
void,  in  some  cases, — not  because  they  are  against  natural  reason 
— nor  because  the  judicial  power  is  superior  to  the  legislative  ; 
but  because  they  are  required  to  declare  what  the  law  is  in  tlie 
case  before  them.  They  are  bound  to  enforce  the  constitution  as 
the  paramount  law,  whenever  a  legislative  enactment  comes  in 
conflict  with  it.a  Inasmuch  as  statutes  are  either  enacted,  inter- 
preted, or  enforced  by  one  or  the  other  of  these  three  co-ordinate 
departments  of  the  sovereign  power,  or  by  a  union  of  all  of  them, 
a  brief  discussion  of  their  respective  powers,  and  the  influence  of 
each,  in  the  control  of  government,  here,  may  not  be  inappropri- 
ate. 

In  the  establishment  of  our  national  and  State  governments, 
the  highest  evidence  of  wisdom,  of  patriotism,  and  statesmanship 
is  manifest,  in  the  policy  of  dividing  the  powers  of  the  govern- 
ments into  the  three  departments,  the  executive,  the  legislative, 
and  the  judicial ;  and,  that  their  respective  functions  should  be 
liept  separate  and  distinct ;  and  w'hile  they  should  be  co-ordinate 
in  rank  and  power,  and  all  be  acting  in  harmony,  yet,  wdthin  their 
respective  spheres,  each  should  be  independent  of  the  other,  and 
be  so  organized,  that,  the  proper  exercise  of  their  respective  func- 
tions, in  tho  powers  of  each,  would  be  a  conservative  check 
upon  the  others,  and  so  confine  each  in  its  action,  to  its  legitimate 
sphere." 

While  the  equality  and  separate  independence  of  these  depart- 
ments is  to  be  implied  in  all  these  constitutions,  several  of  the 
States  made  the  gi-ant  of  power  to  each,  express ;  with  a  prohibition 
to  each  department,  against  the  exercise  of  poAvers  intended  for  the 
others.  In  Massachusetts,  for  instance,  it  was  declared  that,  "  in  the 
government  of  this  commonwealth,  the  legislative  department  shall 
never  exercise  the  executive  or  judicial  powers,  or  of  either  of  them; 

L'  a  Cooley,  on  Constitutiouul  Limitation. 

Note  11. — The  legislative,  executive,  and  judicial  departments  are  co-ordinate 
iu  degree,  to  the  extent  of  the  powers  delegated  to  each  of  them.  Each  in  the 
exercise  of  its  powers,  is  independent  of  the  other,  but  all  rightfully  done  by 
cither,  is  binding  upon  the  others.     Dodge  v.  Woolsey,  18  How.  U.S.  R.  347. 


S4z  rOWEES   OF  THE   SE'STKAL  DEP^VETMENTS. 

tlie  executive  shall  never  exercise  tlie  legislative  and  judicial 
powers,  or  of  either  of  tliem ;  tlie  judicial  shall  never  exercise  the 
lef^islative  and  executive  powers,  or  of  either  of  them  ;  to  the  end, 
that  it  may  be  a  government  of  laws  and  not  of  men."a  The 
same  idea,  in  eflcct,  is  carried  into  other  State  constitutions. 

Mr.  Madison,  one  of  the  ablest  and  most  distinguished  of  con- 
stitutional expoiinders,  said,  h  "  It  is  agreed  on  all  sides  that  the 
powers  properly  belonging  to  one  of  the  departments,  ought  not 
to  be  du-ectly  and  completely  administered  by  either  of  the  other 
departments.  It  is  equally  evident  that  neither  of  them  ought  to 
possess,  directly  or  indirectly,  an  overruling  influence  over  the 
others,  in  the  administration  of  their  respective  powers.  It  will 
not  be  denied,  that  power  is  of  an  encroaching  nature,  and  that 
it  ought  to  be  effectually  restrained,  from  passing  the  hmits 
assigned  to  it." 

Montesquieu,  in  his  work  on  the  Spirit  of  the  Laws,  says,  c 
"  When  the  legislative  and  executive  x^owers  are  united  in  the 
Bame  person,  or  in  the  same  body  of  magistrates,  there  can  be  no 
liberty,  because  apprehensions  may  arise,  lest  the  same  monarch 
or  senate  should  enact  tyrannical  laws,  to  execute  them  in  a  tyr- 
rannical  manner.  Again,  there  is  no  liberty,  if  the  judiciary  power 
be  not  separated  from  the  legislative  and  executive.  Were  it 
joined  with  the  legislative,  thehfe  and  liberty  of  the  subject  would 
be  exposed  to  arbitrary  control ;  for  the  judge  would  be  the  legis- 
lator. Were  it  joined  to  the  executive  power,  the  judge  might 
behave  with  violence  and  oppression.  There  would  be  an  end  of 
everything,  were  the  same  man  or  the  same  body,  whether  of  the 
nobles  or  of  the  people,  to  exercise  these  three  powers,  that  of 
enacting  law^s,  that  of  executing  the  pubhc  resolutions,  and  of 
trying  the  causes  of  individuals." 

And  Blackstone,  who  T\Tote  his  commentaries  in  regard  to  the 
laws  of  a  monarchial  government,  says  :d  "In  all  t;)Tannical  gov- 
ernments, the  supreme  magistracy,  or  the  right  of  both  maldng 
and  enforcing  laws,  is  vested  in  the  same  man,  or  in  one  and  the 
same  body  of  men  ;  and  where  ever  these  two  powers  are  united 
together,  there  can  bo  no  public  liberty.     The  magistrate  may 

a  Bill  of  Eights,  Art.  30.  h  Federalist.  No.  47. 

c  Book  XI,  Chap.  G.  dl  Com.  146. 


rOWEES   OF  THE   SEN'EKAL  Dlli'MiTMENTS.  85 

enact  tyrannical  laws  and  execute  them  in  a  tyrannical  manner, 
since  lie  is  possessed,  in  quality  of  dispenser  of  justice,  witli  all 
the  power,  wliicli  lie,  as  legislator,  thinks  proper  to  give  himself. 
But  when  the  legislative  and  executive  authority  are  in  distinct 
hands,  the  former  will  take  care  not  to  entrust  the  latter  with  so 
large  a  power,  as  may  tend  to  the  subversion  of  its  own  inde- 
pendence, and  therewith  of  the  hberty  of  the  subject."  Again, 
he  says  :  a  "  In  the  distinct  and  separate  existence  of  the  judicial 
power  in  a  pecuhar  body  of  men,  nominated  indeed  by,  but  not 
removable  at  the  pleasure  of  the  crown,  consists  one  main  pres- 
ervation of  the  public  liberty ;  which  cannot  long  subsist  in 
any  State,  unless  the  administration  of  common  justice  be  iu 
some  degree  separated  from  the  legislative,  and  also  the  executive 
power.  Were  it  joined  with  the  legislative,  the  life,  liberty,  and 
^rroperty  of  the  subject  woiild  be  iu  the  hands  of  arbitrary 
judges,  whose  decisions  would  then  be  regulated  only  by  their 
opinions,  and  not  by  any  fundamental  principles  of  law  ;  which, 
though  legislators  may  depart  from,  yet  judges  are  bound  to 
observe.  Were  it  joined  with  the  executive,  this  imion  might 
soon  be  an  overbalance  for  the  legislative." 

But  when  we  speak  of  the  necessity  of  this  division  of  power 
between  these  departments  of  government  as  indispensable  to 
pubhc  hberty,  it  is  not  nu^ant  to  affirm  that  they  must  be  kept  so 
separate  and  distinct  as  to  have  no  common  link  of  connection  or 
dependence,  in  any  sense  whatever,  but,  that  the  whole  power  of 
these  departments  should  not  be  exercised  by  the  same  hands 
which  shall  possess  the  whole  power  of  either  of  the  other  depart- 
ments ;  and  that  such  exercise  of  the  whole,  would  subvert  the 
principle  of  a  fi'ee  constitution,  h 

The  hne  which  separates  the  powers  and  functions  of  one 
department  fi'om  the  other,  is  not  clearly  expressed,  or  accurately 
defined ;  the  practical  result,  must  be,  the  occasional  invasions  of 
the  one  upon  the  other,  and  a  usurjoation  of  fimctions  which 
belong  to  the  one,  by  the  other.  Minds  of  the  ablest  men  will 
differ,  as  to  the  nature  and  extent  of  the  prohibition.  So  long  as 
these  powers  respectively,  depend  upon  mterpretation  ;  the  dif- 
ferent constitutions  of  the  minds  of  men,  more  or  less  influenced 

a  Id.  269.  J,  story  on  Const.  §  525. 


86  POWERS   OF  THE   SE^'EEAL  DEPAETMENTS. 

by  interest,  faction,  an  apparent  necessity  to  meet  a  particular 
case,  or  a  temporarily  existing  popular  sentiment,  the  judgments 
and  reasoning  of  men  partake  of  some  of  the  bias  of  pubhc  opin- 
ion. Practically,  we  Iniow,  that  usui-pations  of  power  by  one 
dejjartment  upon  another,  have  been  assumed,  and  have  had  a 
temporary  sympathy  from  popular  favor,  a 

Mr.  Story,  says :  "  that  in  order  to  preserve  in  full  vigor  the 
constitutional  barrier  between  each  department  when  they  are 
entirely  separated,  it  is  obviously  indispensable,  that  each  should 
possess,  equally,  and  in  the  same  degree,  the  means  of  self-pro- 
tection. Now,  in  point  of  theory,  this  woidd  be  almost  imprac- 
ticable, if  not  impossible  ;  and  in  point  of  fact,  it  is  well  known, 
that  the  means  of  self-protection  in  the  different  departments  are 
immeasurably  disproportionate.  The  judiciary,  is  incomparably 
the  weakest  of  either,  and  must  forever,  in  a  considerable  meas- 
ure, be  subjected  to  the  legislative  power.  And  the  latter  has, 
and  must  have,  a  controlhng  influence  over  the  executive  power, 
since  it  holds,  at  its  ova\  command,  all  the  resources,  by  which  a 
chief  magistrate  could  make  himself  formidable.  It  possesses 
the  power  over  the  purse,  and  the  property  of  the  people.  It  can 
grant,  or  withhold  suj)plies ;  it  can  levy,  or  withdraw  taxes ;  it 
can  unnerve  the  power  of  the  sword  by  striking  down  the  arm 
which  wields  it."/> 

"  It  is,  without  doubt,"  says  DeLolme,  a  writer  upon  the  English 
constitution,  "  absolutely  necessary  for  securing  the  constitution 
of  a  State,  to  restrain  the  executive  power.  But,  it  is  still  more 
necessary  to  restrain  the  legislative.  What  the  former  can  do  by 
successive  steps,  (I  mean  subvert  the  laws,)  and  through  a  longer 
or  shorter  train  of  enterprises,  the  latter  does,  in  a  moment,  as 
its  bare  will  can  give  being  to  laws,  so  its  bare  will  can  also  anni- 
hilate them ;  and  if  I  may  be  permitted  the  expression,  the  legis- 
lative power  can  change  the  constitution,  as  God  created  the  hght. 
In  order  therefore,  to  insure  stability  to  the  constitution  of  a 
State,  it  is  indispensably  necessary  to  restrain  the  legislative 
authority."  c  He  then  proceeds  to  say,  that  he  regards  the  divi- 
sion of  the  legislative  power  into  two  bodies,  as  an  important  aid 
in  the  restraining  power. 

a  Federalist,  No.  48.  h  Story,  on  Const.  §  531 

c  DeLolme's  Book  2,  ch.  3. 


TOWERS   OF  THE  SEVERAL  DEPARTMENTS.  87 

Tlie  truth  is,  says  Judge  Stoiy,  "  that  the  legislative  power  is 
the  great  and  overruling  power  in  every  free  government.  It  has 
been  remarked  with  equal  power  and  sagacity,  that  the  legislative 
power  is  everywhere  extending  the  sphere  of  its  activity,  and 
drawing  all  power  into  its  impetuous  vortex."a  And  he  adds,  the 
opinion,  that  the  founders  of  our  government,  Avere  so  impressed 
with  dread  of  the  royal  prerogative,  that  they  seemed  not  to  have 
remembered  the  danger  from  legislative  usurjiations.  The  repre- 
sentatives of  the' people,  Avill  watcli  witli  jealousy  every  encroach- 
ment of  the  executive  magistrate,  for  it  entrenches  upon  their  own 
authority.  But  who  shall  watch  the  encroachments  of  the  repre- 
sentatives ?  Will  they  be  as  jealous  of  the  exercise  of  power  by 
themselves,  as  by  others  ?"  h  In  a  representative  republic,  when 
the  executive  magistrate  is  carefully  limited,  both  in  the  extent 
and  duration  of  its  power ;  and  where  the  legislative  power  is  exer- 
cised by  an  assembly  which  is  inspired  by  a  supposed  influence  over 
the  people,  with  an  intrepid  confidence  in  its  own  strength  ;  and 
which  is  sufficiently  numerous  to  feel  all  the  passions  which  actu- 
ate the  multitude  ;  yet  so  numerous,  as  to  be  incapable  of  pursu- 
ing the  objects  of  its  i)assions  by  means  which  reason  prescribes ; 
it  is  easy  to  see,  that  the  tendency  to  the  usui'pation  of  power,  is, 
if  not  constant,  at  least  probable ;  and  that  it  is  against  the  enter- 
prising ambition  of  this  department,  that  the  people  may  well 
indulge  all  their  jealousy  and  exhaust  all  their  precautions.c 

There  are  many  reasons  which  may  be  assigned  for  the  engi'os- 
sing  influence  of  the  legislative  department.  In  the  first  place, 
its  constitutional  powders  are  more  extensive,  and  less  capable  of 
being  Ijrought  within  precise  hmits,  than  those  of  either  of  the 
other  departments. 

The  bounds  of  the  executive  authority  are  easily  marked  out, 
and  defined.  It  reaches  few  objects,  and  those  are  known.  It 
cannot  transcend  them,  without  being  brought  into  contact  with 
the  other  department.  Laws  may  check,  and  bound,  and  restrain 
its  exercise. 

The  same  remarks  apply  wdth  still  greater  force  to  the  judic- 
iary.    Its  jurisdiction  is,  or  may  be,  bounded  'to  a  few  objects  or 

a  Story  on  Const.  §  532.  h  Id. 

c  See  Federalist,  Nos.  48  and  49. 


88  POWERS   OF  THE   SEVERAL  DEPARTMENTS. 

persons ;  or  however  general  and  unlimited,  its  operations  are 
necessarily  confined  to  the  mere  administration  of  private  and 
public  justice.  It  cannot  punish  without  law.  It  cannot  create 
controversies  to  act  upon.  It  can  decide  only  the  rights  and 
cases  as  they  are  brought  by  others  before  it.  It  can  do  nothing 
of  itself.  It  must  do  everything  for  others.  It  must  obey  the 
laws ;  and  if  it  con'uptly  administer  them,  it  is  subjected  to  the 
power  of  impeachment. 

On  the  other  hand,  the  legislative  power,  except  in  a  few 
cases  of  constitutional  prohibition,  is  unlimited.  It  is  forever 
varying  its  means  and  its  ends.  It  governs  the  institutions,  and 
laws,  and  pubhc  pohcy  of  the  country.  It  regulates  all  its  vast 
interests.  It  disposes  of  aU  of  its  property.  Look  but  at  the 
exercise  but  of  two  or  three  of  its  ordinary  powers.  It  levies  all 
taxes  ;  it  directs  and  appropriates  all  sujDplies  ;  it  gives  the  rules 
for  the  descent,  distribution,  and  devises  of  all  property  held  by 
individuals.  It  controls  the  sources  and  resources  of  wealth.  It 
changes  at  its  will  the  whole  fabric  of  the  laws.  It  moulds  at  its 
pleasure  almost  all  the  institutions,  which  give  strength,  and  com- 
fort, and  dignity  to  society.a  It  is  the  direct  visible  representa- 
tive of  the  people  in  all  the  changes  of  times  and  circumstances. 
It  has  the  pride  as  well  as  the  power  of  numbers.  It  is  easily 
moved,  and  steadily  moved  by  the  strong  impulses  of  popular  feel- 
ing, and  popular  odium.  It  obeys,  without  reluctance,  the  wishes 
and  the  will  of  the  majority  of  the  body  for  the  time  being.  The 
path  to  pubhc  favor  lies  open  by  such  obedience  ;  and  it  finds  not 
only  support,  but  impunity,  in  whatever  measure  the  majority 
advises,  even  though  they  transcend  the  constitutional  limits.  It 
has  no  motive,  therefore,  to  be  jealous,  or  scnipulous,  in  its  own 
use  of  power ;  and  it  finds  its  ambition  stimulated,  and  its  arm 
strengthened  by  the  countenance  and  courage  of  numbers. 

It  has  been  supposed,  that  the  right  of  appeal  to  the  people  to 
change  the  fundamental  law,  is  an  adequate  protection  to  all  the 
c^dls  that  such  body  may  inflict.  Judge  Story  doubts  this,  in  the 
following  language  :  "  Whoever  has  been  present  in  any  assembly, 
convened  for  such  a  purpose,  must  have  perceived  the  great  diver- 
sities of  opinion  upon  the  most  vital  questions  ;  and  tlie  extreme 

a  Story.  §  534. 


rOWEItS   OF  THE   SEVEILVL  DErAKTMENTS.  89 

dLfficiiltj  iu  bringing  a  majority  to  concur  in  the  long-sighted  wis- 
dom of  the  soundest  provisions.  Temporary  feehngs  and  excite- 
ments, popular  prejudices,  an  ardent  love  of  theory,  an  enthusi- 
astic temperament,  inexperience,  and  ignorance,  as  -well  as  pre- 
conceived opinions,  operate  wonderfully  to  blind  the  judgment, 
seduce  the  understanding.a 

But,  if  the  other  two  departments,  the  executive  and  judiciary 
could  make  this  appeal  to  the  people,  even  then,  in  the  opinion 
of  Mr.  Madison,  they  would  not  enjoy  equal  advantages  on  a  trial. 
He  says  :  h  "  the  members  of  the  executive  and  judiciary  depart- 
ments, are  few  in  number,  and  can  be  personally  known  to  a 
small  part  only,  of  the  people.  The  judiciary,  are  removed  too 
far  fi'om  the  people  to  share  much  in  their  prepossessions.  The 
executive  is  generally  the  object  of  jealous}',  and  their  adminis- 
trations alwaj's  liable  to  be  discolored,  and  rendered  unpopular. 
The  members  of  the  legislative  department,  on  the  other  hand, 
are  numerous.  They  are  distributed  and  dwell  among  the  people 
at  large.  Their  connections  of  blood,  of  friendship,  and  of  ac- 
quaintance, embrace  a  great  proportion  of  the  most  influential 
part  of  society.  The  nature  of  their  public  tnist  implies  a  perso- 
nal influence  among  the  people.  With  these  advantages,  it  can 
hardly  be  supposed  that  the  adverse  party  would  have  an  equal 
chance  for  a  favorable  issue.  But  the  legislative  party  would  not 
only  be  able  to  plead  their  cause  most  successfully  with  the  peo- 
ple ;  they  would  probably  be  constituted  themselves  the  judges. 
The  same  influence  which  had  gained  them  an  election  into  the 
legislature,  would  give  them  a  seat  in  the  convention.  If  this 
should  not  be  the  case  with  all,  it  woidd  probably  be  the  case 
with  many,  and  pretty  certainly  with  those  leading  characters  on 
whom  everything  depends,  in  such  bodies.  The  convention,  in 
short,  would  be  composed  chiefly  of  men,  who  had  been,  who 
actually  were,  or  who  expected  to  be,  members  of  the  department 
whose  conduct  was  arraigned.  They  would  consequently  be  par- 
ties to  the  very  question  to  be  decided  by  them." 

Not  so,  in  any  degi"ee,  is  the  case  of  the  judiciary  department. 
"  It  is  never  brought  into  contact  with  the  people,  by  constant 
appeals  and  solicitations,  and  private  intercourse  which  belongs 

a  Id.  §  537.        .  b  Federalist,  No.  48. 

12 


90  DIVISIONS  OF  STATUTES. 

to  tliG  other  departments  of  government.  It  is  seen  only  in  contro- 
rersies,  or  in  trials  and  punishments.  Its  rigid  justice  and  impar- 
tiahties  give  it  no  c-laims  to  favor,  however  they  may  to  respect. 
It  stands  sohtary  and  unsupported,  except  by  that  portion  of 
pubhc  opinion  which  is  interested  only  in  the  strict  administration 
of  justice.  It  can  rarely  secure  the  sympathy  or  zealous  support 
either  of  the  executive  or  the  legislature.  If  they  are  not,  (as  is 
not  unfi-equently  the  case)  jealous  of  its  prerogatives,  the  constant 
necessity  of  scratinizing  the  acts  of  each,  upon  the  application  of 
any  private  person,  and  the  painfrd  duty  of  pronouncing  judg- 
ment that  these  are  a  departure  from  the  law  or  constitution  ;  can 
have  no  tendency  to  conciliate  kindness,  or  nourish  influence." 

It  may  here  be  allowable,  (and  not  without  its  use  and  practi- 
cal advantage),  to  state  shortly  the  di\dsion  of  statutes,  according 
to  the  foreign  jurists  ;  with  a  brief  sketch  of  their  general  nature 
and  distinctive  quahties. 

But  it  is  necessary  to  premise^  in  order  to  guard  against  a  mis- 
conception lying  in  the  path  of  the  English  lawyer,  that  by 
statutes  the  civilians  mean,  not  the  positive  legislation,  which  in 
England  and  America  is  known  by  the  same  name,  viz._ ;  the  acts 
of  Parhament  and  of  other  legislative  bodies  as  contradistinguisli- 
ed  fi-om  the  common  law  ;  but  the  whole  municipal  law  of  the 
particular  state,  from  whatever  source  arising  a.  Sometimes,  the 
word  is  used  by  civilians,  in  contradistinction  to  the  Eoman 
Imperial  Law,  which  they  are  accustomed  to  style,  by  way  of 
eminence,  "The  Common  Law ;"  since  it  constitutes  the  genera] 
basis  of  the  jurisprudence  of  all  continental  Europe,  modified  and 
resti-ained  by  local  customs  and  usages,  and  positive  legislation. 

Statutes  are  divided  by  civilians  into  personal,  real  and  mixed. 

Personal  statutes  are  those  which  act  upon  the  person  directly 
as  their  subject  or  object ;  by  fixing  and  determining  iis  state  either 
universally  or  particularly ;  without  mentioning  things,  except  with 
reference  to  the  state  with  which  the  person  is  afiected.  Of  univer- 
sal quahties,  some  take  effect  from  birth,  as  nobility  h  legitimacy, 
bastardy ;  and  these  can  only  be  affixed  by  the  law  of  the  domicil  of 
origin.  Some  take  effect  at  a  stated  time  after  birth ;  as  the  period 
of  majority,  and  the  time  when  the  civil  capacity  to  contract  com- 
mences. These  are  governed  by  the  laws  of  the  domicil  of  origin  ; 
each  state  being  the  most  capable  of  judging  fi-om  the  physical 
circumstances  of  chmate  and  otherwise,  at  what  time  the  faculties 
of  its  subjects  are  to  be  considered  morally  and  civilly  perfect  for 
the  pm-poses  of  society.     Other  quahties  are  universal,  so  far  as 

a  story  on  the  Conflict  of  Laws,  p.  10.  b  Not  in  America. 


.     PERSONAL  STATUTES.  91 

the  comity  of  nations  extend,  but  take  eflect  at  an  indelominato 
time  after  birth,  cv  letters  of  iiolnllty,  judgments  or  decrees  of 
competent  tribunals  declaring  any  person  an  idiot,  lunatic  or 
bankrupt.  Tlie  relation  of  marriage  also  seems  of  this  nature  as 
to  its  i)ersonal  qualities,  (the  marital  power,)  however  it  may 
differ  as  to  its  consequences  Avitli  respect  to  real  property  situate 
out  of  the  territory  where  the  act  of  marriage  is  celebrated,  a 

Thus  an  act  done  by  a  minor  in  regard  to  his  property  situate 
in  the  place  of  his  domicil,  ^vithout  the  consent  of  his  guardian, 
is  mvalid  there,  and  will  be  held  invalid  in  every  other  place.  So, 
if  a  married  woman,  Avho  is  disabled  by  the  law  of  the  place  of 
her  domicil  from  enteiing  into  any  contract,  or  from  transferring 
any  property  therein,  without  the  consent  of  her  husband,  should 
make  a  contract  or  transfer  property  situate  therein,  the  transac- 
tion will  be  held  invahd,  and  a  nulUty  in  every  other  country,  h 
"  Qiiando  lex  iii 'personam  dirigitur  respicienda  est  ad  leges  illius  civ- 
itatis,  quce  personam  hahat  su/jjectam.c  "  Qualitas  pcrsoimm,  sicut 
umbra,  sequitnr." 

But,  as  to  acts  done,  rights  acquired,  and  contracts  made,  by 
persons  not  declaied  incapable,  in  other  countries,  the  lex  loci 
contractus  ought  to  prevail,  and  not  the  lex  loci  dojiucilii.  And  as 
the  validity  of  the  contract  may  depend  upon  the  capacity  of  the 
contracting  party,  in  regard  to  questions  of  minority  and  niajority ; 
competency  or  incomptency  to  many  ;  incapacities  mcident  to 
coverture  ;  guardianship,  <fec. ;  as  a  rule  in  other  countrie-s,  the  law 
of  the  domicil  of  birth  or  habitation  is  not  generally  to  prevail, 
but  the  lex  loci  contractus  ant  actus.  Such  ([ualities  as  are  last 
spoken  of,  can  only  be  affixed  by  the  sovereign  or  judge  of  the 
actual  or  real  domicil.  Great  confusion  and  mischief,  it  is  ap- 
parent, would  arise,  if  the  effects  of  judgments  and  decrees  of 
idiocy,  lunacy,  <fcc.,  were  not  to  be  general  and  universal,  and  if 
the  same  person  could  be  considered  as  capable  to  contract  in 
one  place,  and  incapable  in  another.  Here,  d  therefore,  one 
independent  state  will,  by  the  comity  of  nations,  and  for  the 
general  convenience  of  mankind,  give  effect  to  the  laws  and 
judicial  acts  of  another,  so  far  as  it  "can  be  done  without  prejudice 
to  the  fimdamental  princi])les  of  its  own  internal  poHcy.  e 

Tersonal  jxirticular  qiialities,  are  those  whereby  a  person  general- 
ly incapable  by  his  civil  state,  is  rendered  capable  for  some  par- 
ticular act ;  or  a  person  generally  capable  by  his  civil,  state,  is 

a  Modern  statutes,  in  several  of  the  states  of  this  government,  have  changed  this 
marital  jiower.  It  is  not  proposed  to  review  in  this  work,  the  variations  from  the 
common  law  which  have  heeu  effected  by  such  statutes  in  different  states. 

b  Henry  on  Foreign  Law,  p.  4  ;  Bullenois  Pri.  Genl.  6. 

c  1  Hertii  Op.  Do  CoUis.  Leg.  §  4,  art.  8,  p.  123. 

d  Huber  de  jure  civitatis,  1,  3,  c.  10;  Voet  ad  Pandectas,  lib.l,  tit.  4,  par.  2,  n.  11 

e  Henry  on  Foreign  Law,  p.  2. 


92  liE^Mj   STATUTES. 

rendered  incapable  for  some  particular  act.'-  Of  the  first  class 
is  the  statute  7  Anue,  c.  19,  enabling  infant  trustees  to  convey ;  of 
the  second  is  the  act  1  Jac.  1,  c.  15,  s.  5,  disabhng  persons  subject 
to  the  banknipt  laws  from  conveying  or  transferring  their  lands 
to  their  childi'cn  or  others,  except  in  a  particular  way. 

If  the  object  be  of  a  personal  nature,  as  to  contract  or  become 
security,  the  statute  iB])\ii'elj personal,  and  the  quality  accompanies 
the  person  everywhere.  If  the  object  be  of  a  real  nature,  as  to 
ahenate  or  settle  lands,  and  the  subject  matter  real  property, 
then  the  person  is  only  affected  with  respect  to  this  species  of 
property  locally,  and  it  is  confined  to  the  domicile ;  of  which 
dower  in  England  is  an  example.  Personal  disqualifications,  the 
creatures  of  positive  law,  and  especiaUy  such  as  are  of  a  penal 
nature  are  not  generally  regarded  in  other  countries.  Hence  the 
disqualifications  arising  from  heresy,  excommunication,  popish 
recusancy,  &c.,  are  not  enforced  in  any  country  except  in  that  in 
which  they  originate.  The  acts  of  idiots,  lunatics  and  married 
women  escaping  into  foreign  countries,  are  not  deemed  obligatory 
as  regards  property  there,  even  if  sanctioned  by  the  foreign  law, 
unless  the  law  of  their  own  country  adopt  such  foreign  law  as  a 
rule  to  govern  in  such  cases. 

Ileal  statutes,  are  those  which  affect  directly  things  as  their 
object  or  motive,  wdiether  movable  or  immoveable,  and  indepen- 
dently of  the  personal  state  of  him  Avho  is  to  exercise  the  acts  of 
o^\^lersllip  on  them.  According  to  this  description,  the  statute  of 
22  ct  23  C.  2,  c.  10,  regulating  the  distribution  of  the  personal 
property  of  intestates,  is  as  much  a  real  statute  as  that  which 
declares  that  no  lands  in  England  shall  pass  by  a  will  not  attested 
by  three  witnesses.  But  there  is  nevertheless  a  marked  difference 
in  the  powers  and  operations  of  a  real  statute  in  these  two  cases. 
With  respect  to  immovable  property,  the  law  of  the  situation  does 
not  defer  by  comity  to  the  law  of  the  actual  domicile,  which  may, 

NoTi  12. — "Where  the  statute  obliges  an  infant  to  indemnify  the  city,  town  or 
county  against  the  expense  of  supporting  his  illegitimate  child,  and  makes  it  nec- 
essary for  him  to  enter  into  a  bond  with  sureties,  for  the  purpose,  as  the  only 
means  by  which  he  can  obtain  a  discharge  from  arrest  ;  that  provision,  without 
further  words,  gives  the  infant  a  legal  capacity  to  make  a  binding  obligation,  and 
his  infancy  is  no  defence  to  an  action  on  the  bond.  People  v.  Moores,  4  Denio, 
518;  Baker  v.  Lovett,  6  Mass.  80,  4  Mass.  376,  1  Mason  83.  Any  disability  crea- 
ted by  the  common  law,  is  removed  by  the  enactment  of  a  statute.  The  compe- 
tency of  an  infant  to  do  all  acts  within  the  purview  of  such  statute,  is  as  comj^lete 
as  that  of  a  person  of  full  age.  And  whenever  a  statute  has  authorized  a  contract 
tor  the  public  service,  which,  from  its  nature  and  objects,  is  manifestly  intended 
to  be  performed  by  infants,  such  a  contract  must,  in  point  of  law,  be  deemed  to  be 
for  their  benefit,  and  for  the  public  benefit,  so  that  when  bona  fide  made,  it  is  nei- 
ther void  nor  voidable,  but  is  strictly  obligatory  upon  them. 


DIVISIONS  OF  STATUTES.  93 

perhaps,  be  content  with  two  witnesses  in  the  devise  of  lands  fa 
while  a  will  made  abroad,  according  to  the  law  of  the  testator's 
domicile,  is  allowed  to  pass  personal,  or  even  funded  i)roperty  in 
England  ;6  and  the  statute  ot  distriljutions  gives  Avay,  with  respect 
to  the  personal  property  of  intestates  in  England,  to  the  laws  of 
the;  foreign  domicile,  in  the  case  whei'e  a  person  dies  intestate 
abroad  ;c  and  this  by  favor  of  the  liction  of  law  that  mohilia 
.sajxHufur  personam. 

Whether  a  given  statute  be  personal,  real  or  mixed,  and  if 
mixed,  whether  the  personalty  or  realty  prevail,  is  often  a  subject 
of  learned  debate.  The  rules  for  distinguishing  the  several  kinds, 
and  the  application  of  those  rules  to  the  particular  case,  are  often 
keenly  controverted  among  th(>,  civilians  who  seem  to  agi*ee  in 
nothing  but  that  the  matter  is  full  of  dithculty  and  uncertainty.^/ 

When  the  law  of  the  donn'cile  of  the  creditor  and  debtor  differs 
as  to  classing  delfts  and  rights,  and  rights  of  action,  the  law  of  the 
debtor  must  prevail,  in  suits  thereon,  according  to  the  maxims 
actio  sequitur  forum  ret,  and  dehita  sequiintur  jiersonam  debiforis.  It 
is  indeed  a  maxim,  that  debts  and  rights  of  action,  inhaemrd  ossi- 
hus  crediforis,  attend  the  person  of  a  creditor,  but  to  recover  them 
he  must  follow  the  for x)ii  rei,  and  the  person  of  the  creditor.  The 
explanation  of  this  seeming  contradiction  is,  that  personal  actions 
ai-isiug  from  debts  or  obligations,  have  two  characters ;  active  as 
the}'  resj)ect  the  right  of  the  creditor,  and  passiLX  as  they  regard 
the  obligation  of  the  debtor.  If  the  (}ucstion  regard  the  distribu- 
tion of  the  creditors  estate,  the  law  of  his  domicil  is  to  be  observed ; 
if  the  question  be  in  what  degree  or  j^roportion  the  representa- 
tives of  the  debtor  should  be  charged  with  payments  fi-om  his 
effects,  then  it  is  of  a  passive  nature,  and  the  law  of  the  domicile 
of  the  debtor  slioidd  be  foUowed.  The  extent  of  the  vinculum 
()bJi(/afioncs  of  a  contract,  is  regulated  by  the  law  of  the  place  of 
contract.  A  legal  discharge  of  a  debt  in  the  coimtry  where  it  is 
contracted,  will  operate  as  a  discharge  in  all  others.  The  place 
where  the  banknipt  is  arrested,  taken  in  execution,  or  commits 
an  act  of  bankruptcy,  or  where  the  concursos  of  creditors,  or  pro', 
and  concurrcntiae,  are  held  in  the  proper  place  of  distribution.  All 
other  claimants  must  be  drawn  to  the  locus  concursus  crediforum  ; 
its  law  {jus  domicilii)  is  binding,  and  the  equitable  doctrine  of  ces- 
sion and  discharge  is  now  become  a  general  principle  acted  upon 

a  Qy.  Voet,  contra. 

b  Thomas  v.  Walker,  2  Ves,  33,  Fonblanque,  vol,  2,  44G;  Heury  on  For.  Law,  11 

c  Lord  Annandale's  case  before  the  House  of  Lords,  1828. 

d  Ilertius  de  CoUisione  legem,  §  4. 

*rrofossor  Voot,  Zi6.  1,  2'i(.  4:,  jmrt  2,  sect.  13,  considers  "ad  validilafem  actus 
cujusqxie,  sitfficere  adhibitionem  solemnitaium  quos  lex  loci  in  quo  actus  geuitur  prci'. 
scrijjserlt  observandas,"  and  he  assigns  as  a  reason  that  tndustria  exqiusiiissima 
would  be  insuflSciont  to  acquire  a  knowledge  of  the  laws  of  different  countries. 


94  MIXED  STATUTES. 

in  every  coimtry.a  It  is  otherwise  wlien  tlic  debt  is  contracted 
m  a  foreign  conntry.6  A  foreign  bankruptcy  is  no  bar  to  tlie 
demand  of  a  debt  contracted  in  England ;  but  by  a  decision  not 
(ounded  on  any  general  principle,  but  upon  the  effect  of  the  par- 
ticular statute  (5-1.  Geo.  3  C.  137)  a  debt  contracted  m  England 
by  a  trader  residing  in  Scotland,  is  barred  by  a  discharge  under 
II  sequestration,  in  like  manner  as  debts  contracted  in  Scotland/; 

Mixed  statutes  affect  both  persons  and  things,  and  constitute  a 
third  class,  which  (after  spending  much  time  and  profuse  ink  in 
uuprohtable  disputes)  it  was  found  absolutely  necessary  to  admit ; 
there  being  so  many  statutes  which  are  not  either  purely  personal 
or  purely  real.  Whether  a  given  statute  be  personal,  real,  or 
mixed  ;  and  if  mixed,  whether  the  personalty  or  realty  prevail,  is 
often  a  subject  of  learned  debate.  The  rules  for  distinguishing 
the  several  kinds,  and  the  application  of  those  rules  to  the  partic- 
ular case,  are  often  keenly  controverted  among  the  civilians,  who 
seem  to  agi-ee  in  nothing,  but  that  the  matter  is  full  of  difficulty 
and  uncertainty.  "  Li  iis  definiendes  mirum  est  quam  sudant  doc- 
toresyd 

In  the  case  of  the  conflict  of  statutes,  the  following  maxims 
seem  to  obtain  : 

Where  the  personal  statutes  of  the  domicil  of  origin  or  birth, 
and  those  of  the  actual  domicil,  are  discrepant,  the  latter  give 
way  to  the  former,  by  comity,  and  for  the  reciprocal  advantage  of 
sovereigns,  that  each  may  preserve  his  authority  over  his  own 
subjects.  Thus  the  statute  fixing  the  majority  at  twenty-one, 
habihtates  the  party  in  another  domicil  where  the  age  of 
twenty-five  is  required. 

When  the  domicil  of  origin  gives  a  personal  capacity,  but  that 
of  the  situation  of  the  real  property  is  different  and  prohibitory, 
the  lex  loci  rei  sitce  prevails. 

But  when  statutes  real,  differ  in  degree,  each  has  its  effect  pro 

iauto.     If  a  man  has  possessions  in  difierent  states,  in  one  of 

which  he  is  allowed  by  the  law  to  dispose  by  will  of  a  third,  and 

in  another  only  of  a  fifth,  he  may  dispose  of  his  properties  sever- 

'  ally,  in  conformity  with  each. 

Marriage  contracts  are  juris  c/enfiurn.o  Where  there  is  a  mar- 
riage contract,  regulating  the  rights  and  properties  of  the  parties, 
that  wiU  be  held  equally  valid  everywhere/ 

a  Hunter  v.  Potts,  4  T.  K.  182  ;  Sills  and  Warwick,  2  H.  Black.  E.  402  ;  Ballan- 
tine  and  Golding,  Cooke's  Bankrupt  Laws,  499. 

h  Smith  V.  Buchanan,  1  East.  K.  IG  ;  Potter  v.  Brown,  5  East.  124,  2  H.  Bl. 
553,  8  T.  Pt.  C09  ;  Lewis  and  Owen,  4,  B.  and  A.  654. 

c  Sidaway  v.  Hay,  3  B.  and  C.  13. 

d  Hertius  de  CoUisione  legum,  §  4. 

e  Scrimshire  v.  Scrimshire,  2  Hagg.  Consist.  Piep.  p.  412. 

/Story  on  Conflict  of  Laws,  p.  159. 


MIXED  STATUTES.  95 

Where  there  is  a  change  of  domicil,  the  law  of  the  actual  dom- 
icil  will  govcru  the  rights  of  the  parties  as  to  all  future  acquisi- 
tion s.a 

Where  there  is  no  express  contract,  the  law  of  the  matrimonial 
domicil  will  govern  as  to  present, — and  where  there  is  no  change 
of  domicil, — as  to  future  acquired  property  in  that  place  ;  and  as 
to  personal  property  everywhere.  As  to  immovable  property,  the 
lex  rcl  fiifffi  will  prevail. 

Sup])osc  a  husband  and  wife,  married  in,  and  subjects  of,  Eng- 
land, should  become  permanently  domiciled  in  France,  would  a 
will  of  the  wife  in  France  (which  she  could  not  make  in  Enghuidj 
in  regard  to  her  property  in  England,  made  in  favor  of  her  hus- 
band or  others,  be  held  valid  in  England  ?  h  Hertius,  Paul  Yoet, 
eTolin  Voet,  Burgundus,  Ftodenburg,  Pothier  and  Merlin,  hold 
that  the  law  of  the  new  domicil  must,  in  all  cases  of  a  change  of 
domicil,  govern  the  capacities  and  rights  of  property  of  married 
women,  as  well  as  their  obligations  and  duties;  but  the  law  of 
England  is  singiilarly  reluctant  to  admit,  by  comity,  any  doctrine 
which  is  repugnant  to  the  settled  principles  and  policy  of  its  own 
laws. 

There  is  no  doubt,  that,  where  there  is  a  change  of  domicil,  the 
law  of  the  actual  domicil,  and  not  of  the  matrimonial  domicil, 
will  govern  futm'e  acquisitions  of  movable  property,  c  provided 
always,  that  the  law  of  the  place  do  not  prohibit  such  arrangc- 
ments.fZ  For  though  in  general  the  hiAV  of  the  matrimonial  dom- 
ical is  to  govern  in  relation  to  the  incidents  and  eftects  of  mar- 
riage, the  doctrine  must  be  received  with  many  quahfications. 

A  marriage  in  France  or  Prussia  may  be  dissolved  for  incom- 
patibility of  temper  ;  but  no  divorce  would  be  gi'anted  for  such  a 
cause  in  England,  Scotland,  or  America.  "  If,"  said  a  learned 
Scotch  judge,e  "  a  man  in  this  country  (Scotland)  were  to  confine 
his  wife  in  a  cage,  or  beat  her  with  a  rod  of  the  thickness  of  the 
judge's  finger  ;  woidd  it  be  any  justification,  in  any  court,  to  allege 
that  these  were  powers  which  the  laws  of  England  conferred  on  a 
husband?  and  that  he  was  entitled  to  exercise  them  because  his 
man-iage  was  celebrated  in  that  country?" 

"As  to  the  constitution  of  maniage,"  says  the  same  learned 
scotch  judge,  "  as  it  is  merely  a  personal  consensual  contract,  it 
must  be  valid  everywhere,  if  celebrated  according  to  the  lex  loci; 
but  with  regard  to  the  rights,  duties  and  obhgations  thence  arising, 
the  law  of  the  domicil  must  be  looked  to." 

a  Ibid. 

h  Merlin.  Eepert.  Testament,  s.  1.  0,  art.  1,  p.  309. 

c  Stein's  case,  1  Kose,  Rank.  Ca.  Appx.  481  ;  Henry  on  Foreign  Law,  48  ; 
Burge  Comm.  on  Col.  and  Foreign  Law,  pt.  1,  c.  7,  s.  18,  p.  CI 8. 
.dHuber,  lib.  1,  tit.  3,  s.  2. 
e  Ferguson  on  Marriage  and  Divorce  399,  per  Lord  Robinson. 


96  MIXED   STATUTES. 

The  mle  tliat  a  marriage  wliicli  is  valid  where  it  is  celebrated, 
is  valid  everywhere,rt  ^and  if  invalid  there,  is  invalid  everywhere, 
has  three  exceptions.  First  those  marriages  involving  polygamy, 
and  incest.  Secondly,  those  publicly  prohibited  by  the  law  of  a 
coimtry  from  motives  of  pohcy.  Thirdly,  those  celebrated  in  for- 
eign countries,  by  subjects  entithng  themselves  under  special  cir- 
cumstances to  the  benefits  of  the  laws  of  their  own  country. 

"  The  doctrine  of  the  English  courts  in  regard  to  the  indisso- 
lubiHty  of  Enghsli  marriages,  celebrated  in  England,  notwith- 
standing a  subsequent  divorce  in  a  foreign  country,  affords,"  says 
Story,  "a  still  more  striking  illustration  ;  as,  in  its  practical  effects, 
it  may  render  the  issue  of  a  second  marriage  illegitimate  ;  so  that 
a  son,  the  issue  of  a  second  marriage  in  Scotland,  may  be  legiti- 
mate there,  and  illegitimate  in  England;  he  may  be  a  lawful 
Scotch  peer,  and  yet  lose  the  English  estates  which  support  his 
peerage. "6 

Marriages  in  foreign  factories,  in  conquered  places,  in  desert  or 
barbarous  countries, — at  the  embassador's  hotel,  by  the  resident 
chaplain,  etc.,  are  cases  illustrating  the  third  exception.  But 
though  the  rale  of  international  law  certainly  is,  that  betAveen 
persons  sui  juris,  marriage  is  to  be  decided  by  the  law  of  the 
place  where  it  is  celebrated ;  in  France,  where  parental  restraints 
upon  the  marriage  of  minors  are  carried  to  the  greatest  extent,  it 
is  broadly  laid  down  that  the  marriages  of  Frenchmen  in  foreign 
countries  shall  not  be  deemed  valid,  if  the  parties  are  not,  by  its 
own  law,  competent  to  contract,  by  reason  of  their  being  under 
parental  power ;  that  is,  if  they  be  under  twenty-five  years  of 
age.  Majority,  in  France,  is  now  fixed  at  twenty-one,  in  all 
other  cases,  except  for  the  sake  of  contracting  marriage  ;  when  it 
is  not  attained  until  twenty-five.c 

It  w^as  decided  in  Lolly  s  case,  that  a  second  mamage  after  a 
divorce  in  Scotland  fit'om  a  marriage  originally  celebrated  in  Eng- 
land between  English  subjects  is  void  in  England,  although  such 
divorce  and  second  marriage  would  be  good  by  the  law  of  Scot- 
land.cZ  But  in  Warrender  v.  Warrender,  it  was  held  that  the 
Courts  of  Scotland  had  a  clear  jurisdiction  to  decide  a  divorce 
Ijetween  parties  actually  domiciled  in  Scotland,  notwithstanding 
that  the  marriage  was  contracted  in  England ;  and  that  the  House 
of  Lords,  sitting  as  a  Court  of  Appeal,  in  a  case  coming  from 
Scotland,  were  bound  to  administer  the  law  of  Scotland.e 

a  1  Burge  Com.  on  Col.  &  For.  Law,  cb.  5,  §  3,  p.  188. 

h  Story  on  Conflict  of  Laws,  108  ;  citing  Beazley  v.  Beazloy,  3  Hagg.  Ecc.  R.  C39. 

c  Code  Civil,  art.  148,  448. 

(Z  Lolly's  Ca.  1  Euss.  and  Eyau,  23G.  Warrender  v.  Warrender,  8  Bligb.  E. 
891.  And  see  2  Clarke  and  Fin.  E.  5G7,  note.  Macarthy  v.  De  Caix,  2  Euss.  and 
Mylne,  614. 

e  8  Bligb,  891. 


DIVISIONS   OF  STATUTES.  97 

The  (loctrino  in  the  Englisli  courts  that  the  lex  loci  contractus 
shall  not  be  permitted  to  prevail  where  it  is  contra  honos  mores, 
or  is  repugnant  to  the  settled  principles  and  policy  of  our  own 
laws,  is  sup})()rted  in  other  instances.  Where  a  question  arose  in 
the  Court  of  King's  Bench,  whether  a  person  boni  before  mar- 
riage in  Scotland,  of  Scotish  parents,  who  afterwards  intermar- 
ried there,  and  thereby  became  legitimate  in  Scotland,  could 
inherit  real  property,  as  a  legitimate  heir  in  England,  it  was  held 
by  the  Court,  and  afterwards  contirmed  in  Error,  that  he  could 
not.r;. 

When  the  law  of  the  domicil  of  the  creditor  and  debtor,  differs, 
as  to  classing  debts  and  rights  of  action,  the  law  of  the  domicil 
of  the  debtor  must  prevail  in  suits  thereon,  according  to  the 
maxims  actio  scquitur  forum  rci  and  dcbiia  sequKutcr jjet^onarii  debi- 
toris.  It  is,  indeed,  a  maxim  that  debts  and  rights  of  action, 
inhcerent  ossihus  crcdiforis,  attend  the  i)erson  of  a  creditor ;  but  to 
recover  them,  ho  must  follow  the  foritvi  rci  and  person  of  the 
debtor.  The  explanation  of  this  seeming  contradiction,  is,  that 
personal  actions  arising  from  debts  or  obligations  have  two  char- 
acters, active  as  they  respect  the  right  of  the  creditor,  and  passive 
as  they  regard  the  obligation  of  the  debtor.  If  the  question 
regard  the  distribution  of  the  creditor's  estate,  the  law  of  his 
domicil  is  to  be  observed ;  if  the  c[u-estion  be  in  what  degree  or 
proportion  the  rei3resentatives  of  the  debtor  should  be  charged 
with  payments  from  Jiis  effects,  then  it  is  of  a  passire  nature, 
and  the  law  of  the  domicil  of  the  debtor  should  be  followed. 

The  extent  of  the  vincuhnn  ()hli<jnli<))n's  of  a  contract  is  regulated 
by  the  law  of  the  j^ittce  of  contract./;  The  law  of  the  place  of  con- 
tract, in  the  case  of  foreign  contracts,  is  to  govern,  as  to  the 
nature,  the  obhgation,  and  the  interpretation  of  the  contract ;  locus 
contractus  regit  actum.  "  This,"  said  Lord  Brougham,  in  deliver- 
ing his  judgment  in  Warrender  v.  AVarrender,  "  is  sometimes  ex- 
pressed ;  and  I  take  leave  to  say,  inaccurately  expressed  ;  by  say- 
ing that  there  is  a  comitas  shewn  by  the  tribunals  of  one  country 
towards  the  laws  of  the  otln^r  country.  AVliere  the  laws  of  one 
country  consider  the  laws  of  another,  in  which  any  contract  has 
been  made,  in  construing  its  meaning  or  ascertaining  its  existence, 
they  can  hardly  be  said  to  act  from  courtesy,  comitas  ;  for  it  is  of 
the  essence  of  the  subject-matter  to  ascertain  the  meaning  of  the 
parties,  and  that  they  did  solemnly  bind  themselves.  Therefore 
the  courts  resort  to  the  law  of  the  country  where  the  contract  was 
made,  not  ex  comitate,  but  ex  debitoJustitia'"c 

a  Doe  Dem.  BirtliwListle  v.  Yardell,  5  B   autl  Cres.  438  ,  S.  C.  9  Bligli  E.  32. 

h  1  Emerig.  Assur.  ch.  -1,  s.  8,  p.  1'22  ;  Casaregis  Disc.  179,  Heury  on  Foreign 
Law,  139.  And  see  Earl  of  "Winchelsea  v.  Garctty,  2  Keaue  Hep.  298.  Dnnn- 
moudv.  Drummoud,  G  Bro.  I'.  K.  5uO. 

c  8  Bligh  K.  891. 

13 


08  DIVISIONS  OF  STATUTES. 

A  legal  discliarge  of  a  debt  in  the  country  where  it  is  contracted, 
will  operate  as  a  discharge  in  all  others.a  The  place  where  the 
bankrupt  is  aiTested,  taken  in  execution,  or  commits  an  act  of 
bankruptcy,  or  where  the  concursos  of  creditors,  or  prcp.  and  con- 
furrcntm  are  held,  is  the  proper  place  of  distribution.  All  other 
claimants  must  be  di'awn  to  the  locus  concursos  crcdiforum  ;  Us  law 
{jus  domicilii)  is  binding,  and  the  equitable  doctrine  of  cession 
and  discharge,  is  now  become  a  general  principle  acted  upon  in 
every  country.^ 

It  is  otherwise  c  when  the  debt  is  contracted  in  a  foreign  coun- 
try. A  foreign  bankruptcy  is  no  bar  to  the  demand  of  a  debt 
contracted  in  England ;  but  by  a  decision  not  founded  on  any 
general  principle,  but  upon  the  effect  of  the  particular  statute, 
54:  Geo.  o,  c.  137,  a  debt  contracted  in  England  by  a  trader  resi- 
ding in  Scotland,  was  deemed  to  be  barred  by  a  discharge  under 
a  sequestration,  in  like  manner  as  debts  contracted  in  Scotland.^ 

a  Potter  v.  Brown,  5  East,  124. 

b  Hunter  v.  Potts,  4  Term  Reports,  Sills  and  Warwicke,  2  H.  Bl.  402  ;  Ballan- 
tine  V.  Goldiug,  Cooke's  Bankrupt  Laws,  499. 

c  Smith  V.  Buchanan,  1  East,  6  ;  Potter  v.  Brown,  5  East,  124  ;  2  H.  Bl.  553,  8 
T.  K.  609  ;  Lewis  v.  Owen,  4  B.  &  A.  654. 

d  Sidaway  V,  Hay,  3  B.  &  C.  13. 


FORM   OF  STATUTES.  99 


CnAPTER  IV. 


OF  THE  FORM  OF  STATUTES.     THEIR  PARTS.      QU.U.ITIES.     AUTHO- 
RITY AND  RELATION. 

A  STATUTE,  it  lias  been  akeady  seen,  is  a  written  law,  made  by 
tlie  King,  with  tlie  advice  and  consent  of  the  tAvo  Houses  of  Par- 
hament.'  The  mode  of  stating  the  enacting  authority  has  varied 
at  different  tnncs. 

The  estabhshed  form  of  a  statute  is,  "  Be  it  enacted  ey  the 
King's  most  excellent  Majesty,  by  and  with  the  advice  and 

CONSENT  OF  THE  LORDS  SpIRITU.VL  AND  I'EMPOR.VL,  AND   COMMONS  IN 
THIS  PRESENT  PARLIAMENT  ASSEMBLED,  THAT,"  &C.'- 

It  is  impossible  to  dissent  from  the  doctrine  of  Lord  Coke,  that 
acts  of  Parhament  ought  to  be  plainly  and  clearly,  and  not  cun- 
ningly and  darkly,  penned,  especially  in  penal  matters  ;  and  tho 
rather  when,  (duly  honoring  the  memory  of  Sir  Thomas  More, 
and  other  victims  of  conscientious  scruples,)  wo  regard  Lord 
Coke's  illustration  of  that  maxim.  "  In  times  past,"  says  thai 
great  and  honest  lawyer,  "  I  find  that  the  Houses  of  Parliament 

Note  1.— In  America,  it  is,  the  written  law  of  tlie  people,  made  by  their  choaei 
representatives,  having  the  assent  of  the  executive  of  the  State,  who  is  als« 
chosen  by  the  people. 

Note  2.-^The  enacting  clause  of  a  statute  of  congress,  is  thus  expressed. 
"Be  it  enacted  by  the  Senate  and  House  of  Representatives  in  Congress  assem- 
bled." In  a  New  York  statute,  it  is:  "  The  people  of  the  State  of  New  York,  rep- 
resented  in  Senate  and  Assembly,  do  enact  as  follows."  In  other  States  of  tlu! 
union,  the  form  is  substantially  the  same. 

The  constitutional  requisites  to  the  proper  creation  of  a  statute,  in  the  National, 
and  in  the  several  State  legislatures,  are  in  substance  and  eflfect,  so  nearly  similar, 
that  it  would  be  Tlseless  to  do  more  than  to  give  the  outline  of  one. 

By  the  constitution  of  the  United  States,  (Art.  1,)  the  legislative  pon-er  is  vested 
in  the  Senate  and  House  of  Representatives,  but  before  any  bill  can  become  a 
law,  it  must  bo  presented  to  the  President;  if  he  approve  he  shall  sign  it;  if  not, 
he  shall  return  it  with  his  objections,  to  the  house  in  which  it  .shall  have  origina- 
ted; who  shall  enter  such  objections  at  large  upon  their  journal,  and  proceed  to 
reconsider  it.  If  alter  such  reconsideration,  two-thirds  of  that  house  shall  agree 
to  pass  the  bill,  it  shall  be  sent,  together  with  tno  objections  to  the  other  house, 
by  which  it  shall  also  bo  rccohsidereu.  If  apprcved  by  two-thirds  of  that  house, 
it  shall  become  a  law. 


100  FORM  OF  STATUTES. 

have  not  been  faii'lj  dealt  witlial,  but  by  cunning  artifice  of  words, 
utterly  deceived  ;  and  that,  too,  in  cases  of  the  greatest  moment, 
even  in  high  treason.a 

Lord  Coke  b  commends  some  acts  for  being  "  shortly  and  arti- 
ficially penned,"  and  says,  "  it  was  the  wisdom  of  ancierft  Parlia- 
ments to  comprehend  much  matter  in  few  words  ; "  but  this 
express  recommendation  (as  it  is)  of  brevity  and  compression, 
where  the  true  legal  efi"ect,  and  real  force  and  meaning  of  words, 
is  duly  understood,  must  not  mislead.  He  c  elsewhere  pointedly 
says,  ''abundans  cautcla  non  nocet,  and  the  ancient  sages  of  the  law 
did  ever  make  things,  as  plain,  and  leave  as  httle  to  construction, 
as  might  be." 

The  parts  of  statutes  are — in  a  popular,  though  not  legal,  sense  : 

The  Title ;    The  Preamble  ; 

The  Pur\dew  or  Body  of  the  Act ; 

Clauses  ;  Provisos  ;  Exceptions  ; 

The  date,  or  day  of  its  receiving  the  royal  assent.' 

a  i  Inst.  42.  h  2  Inst.  30G;  id.  401. 

c  2  Inst.  375. 
Note  3. — ^By  the  constitution  of  the  United  States,  Art.  1,  Section  7,  "every 
bill  shall  take  effect  as  a  law  from  the  time  it  is  approved  by  the  President."  This 
plain  provision,  as  applicable  to  different  cases,  has  had  various  interpretation. 
In  Matthews  v.  Zanes,  7  "Wheat.  164,  it  was  declared  that  an  act  of  Congress  was 
operative  irom  the  date  of  its  enactment,  if  no  other  time  is  fixed  in  the  act.  In 
such  case  the  effect  is  prospective,  and  not  retrospective.  Matter  of  Eichardson, 
2  Story,  C.  C.  E.  571.  But  it  was  held,  in  the  Matter  of  Welman,  in  U.  S.  Dist. 
Court  of  Vermont,  by  Prentiss  J.,  following  the  English  decisions,  that  a  statute 
which  takes  effect  from,  and  after  its  "passage,  goes  into  operation  the  day  on 
which  it  is  approved,  and  has  relation  to  the  first  moment  of  that  day;  20  Vt.  E. 
653.  This  may  be  very  well  as  a  general  rule,  but]  it  is  a  construction  by  mere 
fiction  of  law,  and  is  not  truth.  By  siich  a  fiction,  a  law  might  relate  back  and 
take  effect  before  it  was  actually  signed  by  the  President.  A  more  sensible  view 
was  taken  by  Story  J.,  in  the  "Matter  of  Eichardson,"  supra.  He  said:  "I  am 
aware  it  has  often  been  laid  down,  that  in  law  there  are  no  fractions  of  a  day. 
Dut  this  doctrine  is  only  true  sub  modo,  and  in  a  limited  sense,  where  it  will  pro- 
mote the  right  and  justice  of  the  case,  pro  hono  publico.  It  is  a  mere  legal  fiction, 
n.nd,  therefore,  like  all  other  legal  fictions,  is  never  allowed  to  operate  against  the 
right  and  justice  of  the  case.  On  the  contrary,  the  very  truth  and  facts  in  jjoint 
of  time,  may  always  be  averred  and  proved  in  furtherance  of  the  right  and  jus- 
tice of  the  case;  and  there  may  even  be  priority  in  an  instant  of  time;  or  in  other 
words,  it  may  have  a  beginning  and  an  end."  Even  in  England,  this  rule  of 
fiction  was  made  to  yield  to  the  promotion  of  justice  between  parties,  and,  it  was 
held  that  the  fact  could  be  alleged  and  proved  to  overturn  this  fiction.  Eoe  v. 
Hersey,  3  "Wils.  E.  275.  In  illustration  of  the  injustice  of  the  fiction,  the  Court 
6aid:  "  Someb"mes  by  a  like  fiction,  the  whole  session  of  Parliament  is  considered 
fts  one  day."  All  acts  of  Parliament  of  one  session,  are  regarded  as  passed  on 
(he  first  day  ^f  the  session. 


TIME  WHEN  STATUTES  TAKE   EFFECT.  101 

The  custom  of  prefixing  titles  to  statutes  did  not  begin  tiJ] 
about  the  eleventh  year  of  the  reign  of  Hcnr}^  Vll,  though  particu- 
lar instances  may  have  occurred  before  that  time. a 

Common  sense,  and  common  justice,  equally  sustain  the  pro- 
priety of  allowing  fractions  of  a  day,  Ashenever  it  will  promote 
the  purposes  of  substantial  justice.  The  tiiue  of  the  approval 
of  an  act,  is  a  question  of  fact.  The  constitution  declares  iliat 
to  be  the  time,  when  the  law  takes  effect.  This  act  of  approval 
cannot  look  backward,  and  by  relation,  or  fiction,  make  that  a 
law  at  any  antecedent  period  of  the  same  day,  -which  was  not  so 
before  the  approval.  The  constitution  cannot  be  abrogated  by 
constmction.  The  law  prescribes  a  rule  for  the  futui'e,  not  for 
the  past.  And  this  in  a  republican  government,  is  a  doctrine  of 
vital  importance  to  the  security  and  protection  of  the  citizen. 
This  is  in  accordance  with  the  spirit  of  another  provision  of  the 
constitution,  that  no  cxpost  facto  law  shall  be  passed.  Take  the 
supposed  case  of  filing  a  banknipt  petition  on  a  certain  day  at 
noon,  when  the  law  was  in  full  force ;  and  an  act  repealing  the 
bankrupt  law  at  eleven  o'clock  in  the  evening  of  the  same  day,  or, 
the  case  of  an  act  performed  in  the  morning  of  a  day,  an  act,  that 
was  innocent  when  performed,  and  a  statute  approved  in  the  even- 
ing of  the  same  day  making  such  act  an  offence  ;  could  the  party 
performing  the  act  be  punished?  clearly  not.  Here  the  law  would 
regard  the  fractions  of  a  day,  and  allow  the  fact  to  be  alleged,  and 
evidence  to  be  given  of  the  fact  in  furtherance  of  justice,  and  the 
matter  of  fact  would  overcome,  even  if  the  fiction  stood  against  it. 

In  the  State  of  Xew  York,  all  fictions  and  presumptions  of  law 
on  this  subject,  are  changed  by  the  Eev.  Stat.  (vol.  1,  157,  §  12,) 
which  provides  that  every  law,  unless  a  different  time  be  pre- 
scribed therein,  shall  commence  and  take  effect  throughout  the 
State,  on,  and  not  before  the  twentieth  day  after  the  day  of  its 
final  '^  passage."  In  Mississippi,  they  have  a  constitutional  pro- 
vision, that  no  law  of  a  general  nature,  unless  otherwise  pro%-ided 
for,  shall  be  enforced,  until  sixty  days  after  its  passage,  (Const, 
Art.  VII,  §  G.)  In  Michigan,  by  a  Uke  constitutional  provision,  nc 
public  act  shall  be  in  force,  until  ninety  days  from  the  end  of  the 
session  of  the  legislature  at  which  it  was  passed.     (Const.  Art.  4, 

«  Wisemaa  v.  Gotten,  Lord  Kaj-m.  77  ;  Chance  v.  Adams,  Hard.  324. 


102  TITLES  OF  STATUTES. 

§  20).  lu  States  where  no  constitutional  or  legal  provision  is 
made  on  tlie  subject,  the  common  law  rule  prevails ;  each  State 
determining  its  otvti  rule  of  interpretation.  This  is  a  question  of 
great  moment,  inasmuch  as  the  common  law  presumption,  is  : — 
"  that  every  citizen  knows  the  law,  and  according  to  the  maxim — 
'  ignoraniia  lecjis  neminem  excused.^  " 

It  is  impossible  that  the  citizens  or  subjects  of  an  extensive 
and  populous  country,  can  obtain  any  accurate  knowledge  of  the 
pui-port  of  an  act  on  the  day  of  its  passage ;  and  the  doctrine, 
that  the  last  act  signed,  is  to  prevail  over,  and  to  abrogate  or 
nullify  one  duly  enacted  a  few  hours  previous,  is  arbitrary,  unre- 
liable, and  may  be  oppressive.  These  evils  are  obviated  by  the 
provisions  of  this,  and  other  States  above  mentioned. 

The  title  should  properly  distinguish  the  act,  by  such  a  name 
as  expresses,  in  general  terms,  its  main  intent ;  and  if  not  perpet- 
ual, its  temporary  duration. 

The  title  of  a  statute,  it  has  been  a  repeatedly  held,  is  no  part 
or  parcel  of  the  statute  ;  for  it  is  usually  framed  only  by  the  clerk 
of  that  House  in  which  the  bill  first  passes,  and  is  seldom  read 
more  than  once.?/'  In  Wills  v.  Wilkins,  Holt  chief  justice,  said, 
"  It  is  true  that  the  title  of  an  act  of  parliament,  is  no  part  of  the 
law  or  enacting  part,  no  more  than  the  title  of  a  book  is  part  of 
a  book  ;  for  the  title  is  not  the  law,  but  the  name  or  description 
given  to  it  by  the  makers."c 

aBarrington  on  Stnt.  449,  hoils;  1  W.  Bl.  85,  R.  v.  Williams. 

h  3  Eep.  33,  Poulter's  case.  c  Wills  v.  Wilkins,  6  Mod.  62. 

Note  4, — It  is  otherwise  in  American  legislation;  here  the  representatives  pro- 
pare  the  whole  statute,  title,  preamble,  (if  any,)  and.  body  of  the  statute. 

Though  the  title  of  an  act  cannot  control  plain  words  in  the  body  of  the  stat- 
ute, yet,  taken  with  other  parts,  it  may  assist  in  removing  ambiguities.  Whero 
the  intent  is  plaiti,  nothing  is  left  to  construction;  but  where  the  mind  labors  to 
discover  the  design  of  the  law-making  power,  everything  w^hich  can  aid 'this 
object,  may  be  resorted  to,  and  even  the  title  of  the  act,  in  such  case,  may  receive 
a  due  share  of  consideration.  United  States  v,  Fisher,  2  Cranch  386.  The  inien- 
I'wn  of  the  law-maker  it  has  always  been  held,  is  the  best  guide  in  the  construction 
of  statutes.  United  States  v.  Palmer,  3  AVheat.  631.  "Williams  v.  Williams,  8  N. 
Y.  R.  535. 

In  doubtful  cases,  the  title  of  an  act  may  serve  to  explain  its  general  purport, 
i\nd  the  inducement  that  led  to  its  enactment^  but  even  then  it  has  little  weight : 
Iladden  v.  Collector,  5  Wallace,  107,  mjd  when  the  title  is  at  variance  with  its 
provisions,  it  is  entitled  to  no  consideration,  though  it  may  tend  to  explain  a 
doubtful  meaning  of  a  part  of  it.  id.  It  cannot  be  used  to  extend  or  restrain  any 
positive  provisions  contained  in  the  body  of  it.  id,  A  law  may  be  good,  though 
it  is  in  conflict  with  the  title. 


TITLES  OF   STATUTES.  103 

Being  tlius  no  part  of  the  act,  tlic  title  is  said  to  afford  "  no 
legislative  import."  « 

The  mere  title  of  an  act  is,  therefore,  a  very  insufficient  anil 
unsafe  guide  to  assist  us  in  ascertaining,  even  in  the  most  general 
way,  the  scope  and  purport  of  the  act;  yet  Avhen  the  mmd labors 
to  discover  the  intention  of  the  legislature,  it  naturally  seizes  upon 
every  thing,  even  the  title,  from  which  aid  may  be  derived.  As 
an  example  of  an  act  gi'catly  "  more  spacious  than  its  title,"  Lord 
Coke  refers  to  the  Statute  of  Us(is,  "  which  extends  to  jointures 
and  dowers  of  women."  The  title  to  an  act  then,  though  no  part 
of  an  act,  is  not  to  be  wholly  disregarded  in  ])utting  a  construc- 
tion upon  the  statute.  The  object  of  the  legislature  is  very  often 
avowed  in  the  title  to  an  act,  as  well  as  in  the  ])reamblc.  lint 
being  no  part  of  the  act,  in  a  legal  sense,  it  would  be  preposter- 
ous to  attempt  to  use  it,  in  restraining  or  coutroling  any  provision 
of  the  act ;  it  can  only  be  used  for  the  fact,  of  the  makers  having 
given  the  law  a  certain  name  ;  if  that  fact,  can  render  any  assis- 
tance in  doubtful  cases. 

Titles,  to  legislative  acts  in  the  State  of  New  York,  and  in  sev- 
eral other  of  the  States  of  the  union,  are  matters  of  very  great 
moment,, in  a  constitutional  view  of  the  statute.  By  section  16  of 
article  3,  of  the  constitution  of  New  York  of  1810,  "  no  private  or 
local  bill  which  may  be  passed  by  the  Icgislatui'c,  shall  embrace 
more  than  one  subject,  and  that  shall  he  expressed .  in  the  title." 
Acts  passed  by  the  legislature  in  violation  of  this  pro\dsion,  have 
been  declared  by  the  courts  to  be  null  and  void.  It  v/as  well  said 
in  an  opinion  in  the  supreme  court  of  this  State  as  foUows :  "In- 
stances had  occurred  in  Avhich  important  enactments  had  been 
smuggled  through  the  legislature,  imder  the  cover  of  some  bill 
with  a  modest  and  unpretending  title.  To  guard  the  legislature  as 
well  as  the  public,  against  this  kind  of  imposition,  the  framers  of 
the  constitution  adopted  the  above  provision."  "  I  am  persuaded 
that  such  a  provision  (which  was  referred  to  in  a  statute)  could 
only  have  made  its  way  through  the  various  forms  of  legislation, 
by  clothing  itself  with  the  guise  of  a  local  measure,  thus  eluding 
the  scrutiny  which  its  own  importance  demands."^  The  act  in 
question  was  an  act  entitled,  "  An  act  to  enlarge  the  jurisdiction 
of  the  coiu'ts  of  general  and  special  sessions  of  the  peace,  in  and 
for  the  city  and  county  of  New  York."     The  body  of  the  act  pro- 

al  Ambler,  22. 

h  People  V.  McCoun,  3  Parker  Crim.  K.  2)9,  300;  per  H;uris,  J. 


104  TITLES  OF  STATUTES. 

videcl  bringing  conyictions  for  capital  offences  before  the  Supreme 
Com-t  and  Com-t  of  Appeals  of  the  State.  This  proA'ision  was  de- 
clared to  be  void,  because  this  general  object  was  not  expressed 
in  the  title.  In  another  case,  in  the  court  of  appeals,  it  was 
repeated,  "  that  it  was  notorious,  that  the  discrepancy  between 
the  headings,  and  the  subjects  of  our  laws  was  so  frequent,  that  a 
constitutional  proAdsion  was  deemed  necessary  to  guard  against 
imposition  upon  a  class  of  legislators,  whose  knowledge  of  bills 
Avas  supposed  to  be  gathered  principally  from  the  title."^  "  The 
purpose  of  this  constitutional  provision  was,  that  neither  the  mem- 
bers of  the  legislature  nor  the  public  should  be  misled  by  the 
title."c  So  in  another  case,  under  the  provisions  of  an  act  enti- 
tled "  An  act  to  amend  and  consolidate  the  several  acts  relatintr 
to  the  city  of  Eochester,"  was  adjudged  to  be  a  local  act ;  but 
among  its  provisions,  was  one,  to  increase  the  number  of  directors 
Avhich  the  common  council  of  the  city  of  Eochester  Avas  entitled 
to  elect,  to  compose  the  board  of  directors  of  the  Eochester  and 
Genesee  Valley  Eaihoad  company.  The  court  said,  "No  human 
ingenuity  would  ever  discover  that  subject  from  the  title  of  the 
bill."  "We  are  clearly  of  opinion  that,  in  regard  to  the  law  in 
question  in  this  case,  the  subject,  or  object,  is  not  embraced  in  its 
title,  and  must  therefore  be  held  to  have  been  passed  in  violation 
of  this  provision  of  the  constitution.tZ 

The  same  provisions  in  substance,  are  found  contained  in  the 
constitutions  of  the  following  States  :  Ohio,  Pennsylvania,  Mich- 
igan, Minnesota,  Maryland,  Kansas,  Kentucky,  Nebraska,  Louisi- 
ana, Texas,  South  Carolina,  California,  Alabama,  Missouri,  loAva, 
Illinois,  Indiana,  Wisconsin,  and  Ncav  Jersey.  The  variations  are 
slight  and  immaterial,  some  requiring  the  ohject,  others — the  srih- 
ject  of  the  act  to  be  expressed  in  the  title.  Some  declaring  the 
whole  enactment  void,  others — only  so  much  thereof  as  is  not  so 
expressed. 

The  courts  of  these  several  States,  Avitli  great  uniformity  have 
concurred  in  sustaining  their  constitutions,  and  in  the  condcmna- 

a  Mayor,  &c.  v.  Colgate,  2  Kern.  HO. 

b  The  Sun  Mutual  Ins.  Co.  v.  The  Mayor,  &c.  8  N.  Y.  K.  253. 
c  People  V.  Hills,  35  N.  Y.  452,  3  ;  People  v.  O'Brien,  38  N.  Y.  E.  195  ;  People. 
ex  rel.  Failing  v.  Com.  of  Highways,  53  Barb.  70;  People  v.  Allen,  N.  Y.  Trans. 


TITLES   OF  STATUTES.  105 

tion  ol  tliis  vicious  character  of  legislation,  in  violation  of  such 
provisions.  The  Supreme  Court  of  Michigan  say  :  "  The  history 
and  puipose  of  this  constitutional  provision,  are  too  well  under- 
stood to  require  any  elucidation  at  our  hands.  The  practice  ot 
bringing  together  into  one  bill,  subjects  diverse  in  their  natui'e, 
and  having  no  necessary  connection,  Avitli  a  view  to  combine  in 
their  favor,  the  advocates  of  all,  and  thus  secure  the  passage  of 
several  measui*es,  no  one  of  which  could  succeed  upon  its  own 
merits,  was  one  both  corruptive  of  the  legislator,  and  dangerous 
to  the  State.  It  was  scarcely  more  so,  however,  than  another 
practice,  also  intended  to  be  remedied  by  this  provision,  by  which, 
through  dexterous  management,  clauses  were  inserted  in  bills, 
of  which  the  titles  gave  no  intimation,  and  their  passage  secm-ed 
through  legislative  bodies,  whose  members  were  not  generally 
aware  of  their  intention  and  eflect.  This  clause  was  not  designed 
to  embarrass  legislation  by  multiplying  the  number  of  bills,  but 
it  w-as  intended  to  put  an  end  to  vicious  legislation,  which  was 
Uttle  better  than  a  fi-aud  on  the  pubhc,  and  to  require,  that  in 
every  case,  the  proposed  measure  should  stand  upon  its  own  mer- 
its.ft  This  is  the  substance  of  all  judicial  interpretation  of  this 
provision.  It  is  not  witliin  the  scope  of  this  chapter  to  bring  up 
in  array,  the  great  number  of  cases  which  have  been  held  to  b(j 
obnoxious  or  otherwise,  to  this  constitutional  pro\'ision  ;  nor  to 
show  the  effect  upon  the  act  in  whole,  or  in  part,  where  in  a  local 
act,  more  than  one  subject  or  object  was  embraced  in  the  bill, 
though  not  expressed  in  the  title.  The  provisions  are  variant  in 
different  constitutions,  and  the  adjudications  have  been  accord- 
ingly variant.^ 

a  People  v.  Maliany,  13  Mich.  E.  49i. 

Note  5.— In  this  State,  in  several  recent  cases,  the  courts  have  been  strict,  to 
sustain  the  integrity  and  spirit  of  this  constitutional  securitj\  In  an  act  of  tbo 
legislature  passed  in  1851,  chapter  389,  entitled,  "An  act  to  amend  and  consoli- 
date the  several  acts  relating  to  the  city  of  Rochester,"'  M-as  held  first,  to  be  a 
local  act.  In  1865,  the  legislature  passed  another  act  entitled,  "An  act  to  amend 
chapter  389,  of  the  laws  of  1851."  By  the  former  act,  the  common  council  of  the 
city  of  Rochester  were  in  a  certain  event  authorized  to  choose  four  directors  of 
the  Rochester  and  Gencssee  Valley  Railroad  company.  By  the  latter  act,  the 
said  common  council  were  authorized  to  choose  seven  directors  in  said  company, 
instead  of  four.  The  title  gave  no  intimation  of  such  an  object.  It  was  held 
unconstitutional.     People  v.  Hills,  35  N.  Y.  4'19. 

An  act  for  the  amendment  of  the  charter  of  the  city  of  New  York  was  also  held 

u 


106  TITLES  OF  STATUTES. 

In  England,  witli  a  constitntional  provision  similar  to  our  own, 
the  Parliament,  in  avoiding  the  abuse  above  complained  of, "ran 
into  an  almost  equal  abuse  by  getting  up  bills,  called  hedge 
podge  acts,  in  which  all  varieties  of  subjects  of  legislation  was 
mixed  up — in  one  act.     The  following  is  a  specimen  of  the  title 
to  such  an  act  passed  in  the  17  Geo.  11,  ch.  40.     "An  act  to  con- 
tinue the  several  laws  therein  mentioned,  for  preventing  theft  and 
rapme  on  the  northern  borders  of  England  ;  for  the  more  effectual 
punishing  wicked  and  e^dl  disposed  persons  going  around  in  dis- 
guise, and  doing  injimes  and  violences  to  the  persons  and  prop- 
erties of  his  Majesty's  subjects,  and  for  the  more  speedy  brmgmg 
the  offenders  to  justice ;  for  continuing  two  clauses ;  to  prevent 
the  cutting  or  breaking  down  the  bank  of  any  river  or  sea-bank  ; 
and  to  prevent  the  mahcious  cutting  of  hop-binds ;  and  for  the 
more  effectual  punishment  of  persons  mahciously  setting  on  fire 
any  mine,  int,  or  delph  of  coal,  or  cannel  coal ;  and   of  persons 
unlawfully  hunting  or  taking  any  red  or  fallow  deer  in  forests  or 
chafes,  or  beating  or  wounding  the  keepers  or  other  officers  in 
forests,  chafes,  or  parks ;  and  for  granting  ahberty  to  carry  sugars 
of  the  growth,  produce,  or  manufactui-e  of  any  of  his  Majesty's 
sugar  colonies  in  America,  from  the  said  colonies  directly  to  for- 
eign ports,  in  ships  built  in  Great  Britain,  and  navigated  accord- 
ing to  law ;  and  to  explain  two  acts  relating  to  the  prosecution  of 
offenders  for  embezzling  naval  stores,  or  stores  of  war ;  and  to 

to  be  a  local  act.  In  an  act  entitled,  "An  act  to  enable  the  board  of  supervisors 
of  the  city  of  New  York  to  raise  money  by  tax,  for  the  use  of  the  cori^oration  of 
the  city  of  New  York,  and  in  relation  to  the  expenditure  thereof,  and  to  provide 
for  the  auditing  and  payment  of  unsettled  claims  against  the  city,  and  in  relation 
to  actions  at  law  against  said  corporation."  There  was  inserted  a  provision,  amend- 
ing the  charter  of  the  corporation,  in  relation  to  the  term  of  office,  and  time  of 
electing  councilmen.  This  was  held  to  be  in  violation  of  the  constitution.  Peo- 
ple v.  O'Brien,  38  N.  Y.  193. 

So,  in  an  act,  entitled  "  An  act  to  regulate  a  highway  in  the  town  of  Palatine," 
where  the  purview  of  the  act,  provided  the  reducing  of  the  width  of  a  particular 
highway,  involving  in  effect,  a  donation  of  the  land  relinquished  to  the  adjoining 
owner,  it  was  held— that  the  object  of  the  act  was  not  stated  in  the  title,  and  was 
unconstitutional.  People  v.  Com.  of  Highways  of  Palatine,  53  Barb.  70;  see 
also,  Smith  v.  Mayor  of  New  York,  34  How.  Pr.  E.  508;  also,  see  cases  not  coming 
within  the  principle  of  this  objection.  Pe'ople  v.  Stevens,  2  Abb.  Pr.  R.  N.  Y. 
348;  Matter  of  Tappen,  36  How.  Pr.  R.  390;  Buruam  v.  Acton,  4  Abb.  Pr.  II.  N. 
Y.  1;  People  v.  McCann,  16  N.  Y.  60. 


THE   PRE^VMBLE.  107 

prevent  the  retailing  of  wine  -witliin  either  of  the  Universities  in 
that  part  of  Great  Britain  called  England,  -vvithont  license." 

Taken  in  connection  \vith  -what  are  acknowledged  parts  of  the 
statute,  (which  it  is  not)  the  title,  where  the  intent  is  not  plain, 
may  slightly  assist  in  removing  aiabigiiities,  although  it  frequently 
alludes  to  the  subject  matter  of  the  act,  only  in  tliti  most  general 
or  SAVceping  terms,  and  very  often  is  not  co-extensive  with  the 
provisions  of  the  act. 

The  preamljle  to  a  statute  usually  contains  the  motives  and 
inducements  to  the  making  of  it ;  but  it  also  has  been  held  to  be 
no  part  of  the  statute  ;  or,  rather,  it  is  not  an  essential  part,  and 
is  frequently  omitted.*^ 

A  preamble  is  not  only  not  essential,  and  often  omitted,  but  it 
is,  strictly  sjieaking,  Avithout  force  in  a  legislative  sense ;  being 
but  a  guide  to,  and  not  the  vehicle  of,  the  import  of  the  statute.^ 
And  to  what  is  it  properl}^  a  guide,  to  tlie  meaniiig  of  the  enact- 
ment? No;  but  to  the  intentions  of  the  IVamer,  which  is  only 
the  first  stage  on  the  road,  in  the  construction  of  statiitcs. 

"  The  influence  of  the  preamble,"  says  Story,  in  his  Commen- 
tary on  the  constitution  of  the  United  States  ox  America,  -  has  ;» 
foimdation  in  the  ex}iosition  of  every  code  cf  \VTitten  lav^, — upou 
the  universal  principle  of  interpretation, — thac  the  will  and  in  ten- 
tion  of  the  legislature  is  to  be  regnrdcd  aivd  followed." 

The  preamble,  is  entitled  to  rieat  consideration.  It  is,  indeed 
that  introductory  statcmerxt  fproanniuin,)  to  which  both  reasoii 
and  authority  i^omt,  for  ascertaining  the  intention  of  the  enact- 
ment. 

"  The  preamble  is  properly  referred  to,"  says  the  American 
commentator,  "  when  doubts  or  ambiguities  arise  upon  the  wordii 
0?  the  enacting  part.     The  preamble  can  never  enlarge ;  it  can- 

C.R.  V.  Altboos,  8  Mod.  lU;  G  Mod.  62;  Wills  and  Wilkins,  6  Mod.  14-1. 

iToTE  6. — The  preamble  of  an  act,  is  the  recital  by  way  of  introduction,  or 
inducement  to  the  enacting  part,  of  the  reasons  upon  which  the  enactment  is 
founded.  The  preamble  of  a  public  statute  recites  the  inconveniences  ■which  it 
proposes  to  remedy, — as  that  doubts  exist  as  to  what  tbe  law  is, — or  that  some 
form  of  ofience  has  been  of  frequent  occiirence,  which  it  is  necessary  to  punish 
with  additional  severity;  or,  the  advantages  which  it  proposes  to  effect;  as  in  the 
New  York  Code;  "whereas,  it  is  expedient  that  the  present  forms  of  actions  and 
pleadings  in  cases  at  common  law  should  be  abolished,  that  the  distinction 
between  legal  and  equitable  remedies  should  no  longer  continue,  and  that  an  uni- 
form course  of  proceedings  in  all  cases  should  be  established,"  therefore,  etc. 
The  reasons  upon  which  a  public  statute  is  passed,  are  not  generally  of  siich  a 
nature  that  they  can  be  fully  set  forth  with  precision,  and  are  too  numerous  to  be 
recited,  and  they  arc,  therefore,  generally  omitted.  The  preamble  to  a  i^rivate 
statute,  if  used,  should  set  forth  the  tacts  upon  which  it  is  founded.  "With  iis,  in 
this  country,  in  both  public  and  private  statutes,  preambles  are  now  omitted,  as 
the  general  rule. 


108  PEEAMBLE  TO   STATUTES. 

not  confer  any  powers,  j^er  se.     Its  true  office  is  to  expound 
powers  conferred,  not  substantially  to  create  tliem."a 

In  doubtfnl  cases,  recourse  may  be  liad  to  the  preamble,  to  dis- 
cover the  inducements  the  legislature  had  to  the  making  of  the 
statute  ;  but  where  the  terms  of  the  enacting  clause  are  clear  and 
positive,  the  preamble  cannot  be  resorted  to.'     Lord  Coke  con- 
sidered the  rehearsal  or  preamble,  a  key  to  open  the  understand- 
ing of  the  statute,  and  it  is  properly  considered  b  a  good  mean  for 
collecting  the  intent  and  showing  the  mischiefs  which  the  makers 
of  the  act  intended  to  remedy.     Tlie  civilians  say,  ccssanie  Icgis 
proccmio,  cessat  et  ipsa  lex,  but  English  law^^ers  are  aware  how  sel- 
dom, at  least  in  the  older  statutes,  the  key  will  unlock  the  casket ; 
how  rarely  the  preamble  is  found  to  state  the  real  occasion  of  the 
law,  and  the  full  views  of  the  proposer  of  it.     "  It  is  nothing  unu- 
sual in  acts  of  Parliament,"  says  Lawrence,  J.,  in  the  case  of  the 
King  and  Marks,  "  for  the  enacting  part  to  go  beyond  the  pre- 
amble ;  the  remedy  often  extends  beyond  the  particular  act  or 
mischief  which  first  suggested  the  necessity  of  the  law."     "  Some- 
times," it  is  well  expressed  by  another  reporter,  "  the  legislature 
having  a  particular  mischief  in  view,  which  was  the  primary 
object  of  the  statute,  merely  state  tliai  in  the  preamble,  and  then 
go  on  in  the  body  of  the  act,  to  provide  a  remedy  for  general 
mischiefs  of  the  same  nature,  but  of  different  species,  neither 
expressed  in  the  preamble,  nor,  perhaps,  then  in  immediate  con- 
templation."    Lideed,  Lord  Coke's  manner  of  expressing  himself 
is  very  observable.     Instead  of  saying  that  the  preamble  should 
control  the  enacting  clauses,  or  of  limiting  precisely  how  far  it 
should  have  that  effect,  which  w^ould  have  been  attempting  to 
mark  a  line,  where,  it  is  to  be  feared,  one  cannot  be  drawn,  he 
cautiously  says,  that  it  is  a  good  mean  to  find  out  the  intention. 
In  a  late  case,  it  was  decided  that  a  preamble  may  be  important 
when  the  enactment  which  follows  is  capable  of  tw^o  senses.  But, 
it  is  added,  "  though  it  may  assist  in  construing  ambiguous  expres- 
sions, it  cannot  control  clear  ones."c     Indeed,  what  sort  of  influ- 
ence the  preamble  ought  to  have  in  expounding  statutes,  will  be 
best  explained  by  examples,  at  a  future  time,  when  the  rules  of 

a  Story's  Com.   Kules  of  interpretation  of  the  Constitution,  etc. 

h  4  Inst.  330.  c  The  Salters  Co.  v.  J.,  3,  2  B.  E.  109. 

Note  7. — The  preamble  may  be  resorted  to  in  aid  of  the  construction  of  the 
enacting  clause,  if  any  ambiguity  exists.  Beard  v.  Eowan,  9  Peters,  301;  Cres- 
pignyv.  Witteboom,  4  T.  E.  793;  Sir  Wm.  Jones,  163;  Barker  v.  Eedding,  Pal- 
mer 485;  Bac.  Abr.  380;  Jackson  v.  Gilchrist,  15  John.  E.  89,  id.  116;  Coustp.n- 
tine  V.  Van  Winkle,  6  Hill,  184;  Clark  v.  Bynum,  3  McCord,  298;  United  States 
V.  Webster,  Davies  E.  38;  Blue  v.  McDuffie,  Busbee  Law,  N.  C.  131. 

It  is  properly  referred  to,  when  doubts  and  ambiguities  arise  upon  the  words 
of  the  enacting  part.  It  can  never  enlarge;  it  cannot  confer  any  power  per  se. 
Its  true  office  is  to  expound  powers  conferred;  not  to  create  them. 


PREAMBLE  TO   STATUTES.  109 

construction  applicable  to  distinct  parts  of  statutes  are  taken 
into  consideration. 

It  will,  perhaps,  bo  found,  that  tlie  rule  is  stated  at  once 
broadly,  and  with  the  ^a-eatest  accuracy,  by  two  of  the  judges, 
(Mr.  Justice  Buller,  and  Mr.  Justice  Grose,)  in  the  case  of  Cres- 
pigny  V.  Wittenooin  ;a  that  the  preamble  may  be  compared  with 
the  different  clauses  of  the  act,  to  collect  the  intention  of  the 
legislature ;  aud  where  the  intention  is  a])])arent  not  t<j  extend 
the  act,  the  in-eaniljlo  may  be  used  in  restraint  of  the  generality 
of  the  enacting  clause,  where  it  would  Ije  inconvenient  if  not 
restrained;  or  it  may  ]>e  rosortt-d  to  in  explanation  of  the  enact- 
ing clause,  if  it  be  doul)tfal. 

Such  is  the  whole  extent  of  the  influence  of  the  title  and  pre- 
amble. Barrington  has  shewn  in  his  observations  on  the  statutes, 
by  many  instances,  that  a  statute  frequently  recites  that,  which 
was  not  the  real  occasion  of  the  law  ;  or  states  that  douljts  existed 
as  to  the  law,  when  in  fact  none  were  entertained.  The  most 
common  recital  for  the  introduction  of  any  new  regulation,  lias 
been  to  set  forth  that  doubts  have  arisen  at  the  conmion  law. 
Frequently  these  alleged  doubts  never  existed  at  all ;  and  such 
preambles  are  supposed,  therefore,  to  have  much  weakened  the 
force  of  the  common  law,  in  several  instances. 

The  preamble  of  an  act  of  Parliament,  recitiiig  that  certain  out- 
rages had  been  committed  in  particular  ]iarts  of  the  kingdom,  Avas 
adjudged  by  the  court  of  King's  Bench/*  to  be  admissible  in  evi- 
dence for  the  purpose  of  proving  an  introductor}^  averment  in  an 
information  for  a  libel,  that  outrages  of  that  description  had  ex- 
isted. Pubhc  acts  of  Parliament,  it  was  said,  are  binding  upon 
every  subject ;  the  judges  are  bound  to  take  judicial  notice  of 
their  contents ;  every  subject  is,  in  judgment  of  law,  privy  to  the 
making  of  them,  and  supposed  to  know  them ;  the  passing  of  an 
act  of  Parhament  is  a  public  proceeding  in  all  its  stages,  and  when 
the  act  is  passed,  it  is,  in  contemplation  of  law,  the  act  of  the 
whole  body  of  the  kingdom.  The  court  of  King's  Bench,  for 
these  reasons,  were  of  opinion  that  the  preamble  in  question  had 
been  properly  admitted  in  e\ddence. 

A  preamble  is  often  prefixed  to  a  particular  clause,  whose  tenor 
is  to  be  guided  by  it. 

The  true  meaning  of  the  statute  is  generally  and  properly  to  be 
sought  from  the  2nu'view,  jn-ovuUm/  part,  or  body  of  the  avt\  The 
preamble  of  a  statute  is  no  more  ithan  a  recital  of  some  inconve- 
niences which  by  no  means  excludes  any  other,  for  which  a  rem- 
edy is  given  by  the  enacting  part  of  thft  statute.  Great  doubts 
have  existed  how  far  the  preamble  should  control  the  enacting 
part  of  a  statute  ;  but  abundant  cases  have  established  that  where 
the  words  in  the  enacting  part  are  strong  enough  to  take  in  the 

a  4  T.  E.  193.  h  3  Atk.  204;  Cowp.  Co3. 


110  INTENTION  OF  STATUTES. 

miscliief  intended  to  be  prevented,  they  sliall  be  extended  for  that 
pui-pose,  tbongli  tlie  preamble  does  not  warrant  it ;  in  other  words, 
the  enacting  part  of  the  statute  may  extend  the  act  beyond  the 
preamble. 

It  will  be  found  also,  to  be  an  established  rule  in  the  exposition  ' 
of  statutes,  that  the  intention  of  the  lawgiver  is  to  be  deduced 
fi-oni  a  view  of  the  whole  and  of  every  part  of  the  statute,  taken 
and  compared  together.  In  construing  acts  of  Parliament  the 
courts  are  not  to  look  only  at  the  language  of  the  preamble,  or  of 
any  particular  clause.  If  they  hnd  in  the  preamble,  or  in  any 
particular  clause,  an  expression  not  so  large  and  extensive  in  its 
import  as  those  used  in  other  parts  of  the  act,  kc,  it  is  their  duty 
to  give  effect  to  the  larger  expressions.a  Indeed  a  statute  ought, 
upon  the  whole,  to  be  so  construed,  that,  if  it  can  be  prevented, 
no  clause,  sentence,  or  word,  should  be  superfluous,  void,  or  insig- 
nificant.6 

But  the  general  words  in  one  clause  of  a  statute  may  be  restrain- 
ed by  the  particular  words  in  9,  subsequent  clause  of  the  same 
statute. c  Where  a  general  intention  is  expressed,  and  the  act 
also  expresses  a  particular  intention  incompatible  with  the  gene- 
ral intention,  the  particular  intention  is  to  be  considered  in  the 
nature  of  an  exception.*:^  While,  if  a  particular  thing  be  given  or 
limited  in  the  preceding  parts  of  a  statute,  this  shall  not  be  taken 
away  or  altered  by  any  subsequent  general  words  of  the  same 
statute. e  Indeed,  where  the  intention  of  the  legislature  is  not 
apparent  to  that  purpose,  the  general  words  of  another  and  later 
statute  shall  not  repeal  the  particular  provisions  of  a  former  one.  /" 
"It  cannot  be  contended,"  says  Lord  Kenyon,  "  that  a  subsequent 
act  of  Parliament  will  not  control  the  provisions  of  a  prior  statute, 
if  it  were  intended  to  have  that  operation  ;  but  there  are  several 
cases  in  the  books  to  show,  that  when  the  intention  of  the  legis- 
lature was  apparent  that  the  subsec^uent  act  should  not  have  such 
an  operation,  there,  even  though  the  words  of  such  statute  taken 
strictly  and  grammatically  would  repeal  a  former  act,  the  courts 
of  law,  judging  for  the  benefit  of  the  subject,  have  held  that  they 
ought  not  to  recieve  such  a  construction.7  And,  if  in  the  same 
act  of  Parliament,  there  be  one  clause  which  applies  to  a  partic- 
ular case,  and  another  which  is  conceived  in  general  terms,  the 
former  shall  not  restrain  the  signification  of  the  latter./i 

a  Per  Lord  Tenterden,  Doe  dem  Bywater  and  Brandling,  7  B.  &  C.  C13. 
h  1  Show.  108,  E.  V.  Burcliett,  Hard.  344. 
c  E.  V.  Arclibislaop  of  Armagh,  8  Mod.  8. 

d  Churchill  v.  Crease,  5  Bing.  180;  referred  to  in  Terrington  and  Ilargraves, 
ib.  492,  3. 
e  Stanton  v.  The  University  of  Oxford,  1  Jon.  2G. 
/  Gregorj-'s  case,  G  Eep.  19  b. ;  Foster's  case,  11  Bep.  C8  b. 
(J  ^Villiams  v.  Britchard,  4  T,  E..  2,  4.  h  2  T.  E.  104. 


EFFECT  OF  WORDS.  Ill  _ 

"  Every  word  importing  the  plural  number,  shall  extend  and  bo 
apphed  to  one  person  or  thiii^,  as  well  as  to  sereral  persons  and 
things ;  and  every  word  importing  tho  masculine  gender  only, 
sliall  extend  and  bo  applied  to  a  fenude  as  well  as  to  a  male,  «kc." 

Whether  this  arbitrary  enlargement  or  contraction,  of  the  ordi- 
nary meaning  of  words,  has  answercnl  its  intended  purpose,  is  at 
the  best,  very  doubtful.  It  nuist  often  l^o  a  question,  whether 
the  context  does  reasonably  admit  of  the  arbitrary  construction  of 
the  words  used.  Amendments  introduced  on  the  sudden,  will  be 
often  made  by  members  of  the  legislature  who  are  inexpeiienced, 
and  little  aware  of  the  arbitrary  chang(!  in  the  sense  of  ordinary 
terms.  Definitions  are  not  always  found  to  render  the  meaning 
more  clear ;  and  they  are  sometimes,  perhaps  invidiously,  sus- 
pected of  being  used  to  disguise  the  meaning.  AVlieu  a  proposi- 
tion is  wanted  which  cannot  be  opeidy  pro])osed,  inquiry  is  cen- 
soriously said,  to  be  oftentimes  made,  whether  it  cannot  be  con- 
cealed in  a  constniction  clause.  In  Courts  of  law,  the  interpreta- 
tion clause  is  too  often  found  to  require  an  interpreter ;  and  it 
may  be  questioned,  ■whether  it  ever  succeeds  in  giving  an  improved 
expression  of  the  will  of  the  lawgiver. 

Interpretation  clauses  arc  by  no  nutans  to  be  strictl}' construed, 
and  convenience  seems  likely  to  lead  to  their  being  practically 
disregarded.* 

Note  8. — A  legislature  cannot  authoritatively  inter^jret,  or  declare  what  the  law 
is,  or  has  been,  but  only  what  it  shall  be.  It  is  the  province  of  the  court  to 
declare  the  law  of  an  existing  statute.  Ogdeu  v.  Blackledge,  2  Cranch  272 ;  Ash- 
ley's case,  4  Pick.  23. 

"When  the  constitutional  validity  of  a  law  is  in  controversy,  and  tho  law  itself 
may  be  ambiguous  in  its  import,  that  construction  must  be  given  to  it  which  will 
sustain  its  validity,  rather  than  the  one  which  will  render  it  inoperative  and  void. 
Rosevelt  V,  Goddard,  52  Barb.  533,  5iS;  Ogdenv.  Saunder.s,  12  Wheat.  270. 

The  presumption  is  always  in  favor  of  tho  constitutionality  of  a  law,  and  before 
declaring  it  Toid,  the  court  must  be  satisfied  that  it  violates  the  constitution, 
clearly,  plainly,  palpably.  Speer  v.  School  Directors,  50  Penn.  St.  R.  150;  Brown 
V.  Buzan,  24  Ind.  194.  This,  however,  is  only  a  presumistion,  and  is  not  to  be 
indulged  to  the  extent  of  making  all  statutes  constitutional,  on  the  ground  that 
we  must  presume  the  legislature  intended  to  make  all  their  acts  effective,  but  only 
that  the  court,  if  possible,  must  give  the  statute  such  construction  as  will  enable 
it  to  have  effect,  and  to  uphold  it  when  not  in  conflict  with  the  constitution.  Peo- 
l)le  V.  Supervisors  of  Orange,  17  N.  Y.  241.  And  this  rule,  I  understand  is  the 
same  whether  applied  to  a  part,  or  to  tho  whole  of  a  statute,  when  the  whole  is 
assailed;  it  is  void  only  as  to  the  excess  of  power.  Nelson  v.  the  People,  33  111. 
390;  MoCullock  v.  State,  11  Ind.  424. 

It  is  a  curious,  as  weU  as  an  interesting  study,  to  watch  the  progressive  spirit 
of  the  periods,  and  to  see  how  just  in  proportion,  as  the  natural  rights  of  man 
are  understood,  just  in  the  same  proi^ortion  are  restraints  imposed  upon  absolute 
and  arbitrary  acts   of  tho  government;  and  just  in  degree,   as  rights  become 


112  EFFECT   OF  WOEDS. 

In  Eeg.  V.  Justices  of  Cambridgesliire ;  Eeg.  v.  Justices  of 
Shropshire,  and  Keg.  v.  Justices  of  Gloucestershire,  Lord  Den- 
man  said  :  "  We  cannot  refrain  from  expressing  a  serious  doubt 
whether  interpretation  clauses  will  not  rather  embarrass  the 
coui'ts  in  their  decision,  than  afford  that  assistance  which  they 
contemplate.  For  the  principles  on  which  they  are  themselves 
to  be  interpreted,  may  become  matter  of  controversy ;  and  the 
application  of  them  to  particular  cases  may  give  rise  to  endless 
doubts. a 

When  for  the  purpose  of  a  more  than  usually  comprehensive 
enactment,  it  is  deemed  necessary  to  include  the  intended  mean- 
ing of  numerous  words  in  the  arbitrary  import  of  one  ;  or,  that 
there  should  be  numerous  words  bearing  the  same  constructive 
import,  that  end  should  be  attained  b}'  means  of  a  schedule 
annexed  to  the  act. 

And  notice  should  be  taken  of  such  schedule  at  this  stage  of 

the  act  in  the  following :    "  The  word ,  shall  be  interpreted, 

as  fully  signifying  its  import,  the  meaning  of  each  of  the  several 
words  in  schedule  marked  A,  which  is  to  this  act  annexed,  as  well 
in  their  singular  as  in  their  plural  sense,  etc."     Schedules  are  dis- 

a  7  A.  andE.  480. 
secured  and  protected,  and  astlie  science  of  true  jurisprudence  acquires  form  and 
certainty,  just,  in  the  same  degree  does  the  law  and  its  ministers  rise  in  influence 
and  importance.  Look  back  to  the  day,  when  Justinian,  the  Emperor  and  great 
lawgiver  of  the  Koman  government,  exercised  all  the  powers  of  sovereignty,  and 
made,  modified  and  interpreted  the  law.  In  a  rescript  to  his  prefect,  he  uses  this 
language  :  "We  declare  the  imperial  construction  of  laws,  whether  made  on  peti- 
tion or  in  suits,  or  in  any  way  whatever,  to  be  absolute  and  final.  Fcr,  if  the 
sovereign  alone  can  make  laws,  he  alone  should  interpret  them ;  why  else,  when 
questions  have  arisen  in  controversies,  have  they  been  brought  to  us  ?  and  why, 
too,  have  judicial  doubts  reached  our  ears,  if  interpretation  does  not  i^roceed 
from  us  alone  ?  Who,  indeed,  is  competent  to  solve  the  enigmas  of  the  law, 
except  he  to  whom  the  power  of  legislation  is  conceded  ?  These  absurd  cavilings 
are,  therefore,  to  cease,  and  the  Emperor  to  be  regarded  as  the  only  interpretor, 
as  he  is  the  only  maker  of  laws."  Cod.  DeLegibus,  Lib.  1,  Tit.  14,  §  12.  Such 
was  the  language,  that  the  master  of  the  world  of  civil  law,  could,  with  impunity 
make  use  of.  Where  now,  in  Christendom,  is  the  monarch  that  dares  to  emjiloy 
such  language,  or  that  dares  to  assume  this  despotic  power  ? 

It  should  be  the  pride  of  the  citizen  under  the  system  of  a  free  government,  to 
compare  his  protections  under  a  government  of  written  constitutions,  with  the 
despotic  power  of  the  Roman  Emperor  over  the  people  of  his  empire.  Here,  this 
power  is  distributed  to  three  independent,  co-ordinate  departments;  the  law 
making  power  is  exclusively  confided  to  one,  to  the  legislative  department;  which 
possesses  no  power  to  construe  or  enforce  its  own  acts.  Their  construction  is 
exclusively  confided  to  the  judiciary;  and  their  enforcement  to  the  execxitive. 
And  the  powers  of  each  department  so  conferred  and  distributed,  as  that  each 
acts  as  a  check  upon  the  other. 


REPEAL  OF  STATUTES.  113 

tmguisliingly  marked  with  difterent  letters  of  the  alphabet ;  and 
tlie  different  parts  of  the  same  schedule  by  means  of  different 
numbers.     A.  1,  B.  1,  etc. 

But  the  a(;t  of  Parliament,  and  the  schedule  are  sometimes 
found  to  differ,  and  what  will  be  the  result  of  such  discrepancy? 
"If  there  be  any  contradiction  between  the  two,  and  they  cannot 
be  reconciled,"  then,  said  Lord  Denman,  "upon  ordinary  princi- 
ples, the  form,  which  is  made  to  suit  rather  the  generality  of 
cases,  than  all  cases,  must  give  ■w'ay."a  "  Words  in  schedules 
nmst  be  received  as  examples,  not  as  overruUng  provisions,"  said 
Tindal,  C.  J. 

The  next  clause  in  order,  in  those  cases  in  which  it  is  used, 
should  be  the  repealing  clause ;  showing  what  prior  acts  are 
totally  repealed ;  "  save  so  far  as  they  repeal  any  other  act  or 
acts,  or  part  or  parts  thereof ;  and  what  acts  are  partially 
repealed ;  and  what  statutes  are  recognized  as  being  in  full  force, 
and  as  having  immediate  connection  with  the  enactments  of  such 
former  act.* 

a  Iveg.  V.  Baiues,  12  A.  aud  E.  227. 

Note  9. — Where  a  statute  is  intended  to  be  repealed,  its  title  is  generally  inser- 
ted in  the  repealing  act;  and  therefore,  the  repeal  of  a  statute  is  not  to  be  inferred 
from  a  general  and  uncertain  allusion  to  it  in  a  repealing  act.  Chegary  v.  Jen- 
kins,  3  Sand.  Sup.  C.  E.  409. 

A  statute  may  be  repealed  by  necessary  implication,  aud  without  any  express- 
words;  the  leaning  of  the  courts  is  against  the  doctrine,  if  it  be  possible  to  recon- 
cile the  two  acts  of  the  legislature  together,  though  a  statute  may  be  repealed  by 
the  abrogation  of  a  State  constitution.  A  statute  enacted  under  the  constitution 
of  this  State,  of  1821,  prohibited  the  judges  of  appellate  courts  to  take  part  in 
the  decisions  of  causes  determined  by  them,  when  sitting  as  the  judges  of  any 
other  court;  this  was  held  to  be  virtually  repealed  by  the  constitution  of  18-16, 
which  abrogated  the  constitution  of  1821.  Pierce  v.  Delamatter,  1  N.  Y.  17.  So, 
loo,  if  the  latter  part  of  a  statute  be  repugnant  to  a  former  part  of  it,  the  latter 
l)art  shall  stand,  and,  so  far  as  it  is  repugnant,  be  a  repeal  of  the  former  part, 
because  it  was  last  agreed  to  by  the  legislature. 

In  1828  the  legislature  of  this  State  enacted  a  general  statute  in  relation  to 
repeals  of  particular  acts,  which  was  made  a  part  of  the  Revised  Statutes,  and 
which  contained  also,  general  jirovisions  as  to  the  efitect  of  statute  repeals.  So 
much  of  it  as  relates  to  that  subject  is  transcribed,  aud  is  as  follows  : 

§  3.  None  of  the  statutes  of  England  or  Great  Britain  shall  be  considered  as 
laws  of  this  state  ;  nor  shall  they  be  deemed  to  have  had  any  force  or  etiect  in 
this  state,  since  the  first  day  of  May,  in  the  year  one  thousand  seven  hundred  and 
ighty-eight. 

§  4.  No  statute  passed  by  the  governmcut  of  the  late  colony  of  New- York,  shall 
be  considered  as  a  law  of  this  state. 

§  5.  The  repeal  of  any  statutory  provision  l)y  (his  pct,  shall  not  affect  any  act 
done,  or  right  accrued  or  establislu-d.  or  any  proceeding,  suit  or  prosecution  had 
or  commenced  in  any  civil  case,  i)revious  to'  the  time  when  such  repeal  shall  take 
effect ;  but  every  such  act,  right  and  proceeding,  shall  remain  as  valid  and  efft-c- 
tunl,  as  if  the  provision  so  repealed,  had  remained  in  force. 

15 


Ill  repe.Mj  of  statutes. 

The  i)i'aisewoitliy  object  of  tins  clause,  is  to  point  out  that 
either  it  is  the  only  statute  of  force  upon  the  subject,  by  the 
repeal  of  all  others ;  or  to  show  what  other  statutes  are  to  be 
considered  in  connection  with  it ;  so  that  the  reader  may  be  pre- 
pared with  the  auxiliary  statutes  at  hand,  l)efore  he  enter  on_  the 
consideration  of   the  legislative  details  in  the    statute   reciting 

them.  XI        • 

Where  there  are  many  statutes  to  be  repealed,  or  otherwise 
mentioned,  they  should  be  arranged  chronologically  in  a  schedule, 
with  a  column  sliowing  the  extent  of  the  repeal ;  and  they  should 
be  referred  to  in  this  part  of  an  act. 

The  number  of  clauses  in  a  statute,  depends  on  the  subject  to 
be  legislated  upon.  The  remaining  chiuses  in  most  general  use, 
are,  besides  those  already  mentioned,  a  Saving  clause  ;  an  Appeal 
clause  ;  a  clause  showing"  to  what  places  the  operation  of  the  act 
shall  extend  ;  a  clause  showing  fi'om  what  date,  the  operation  of 
the  act  is  to  commence  and  how  long  it  shall  continue  in  force ; 

^  f).  No  offence  committed,  and  no  penalty  or  forfeiture  incurred  previous  to 
the  time  wlien  any  statutory  provision  shall  be  repealed,  shall  be  affected  by  such 
repeal ;  except  that  where  any  punishment,  forfeiture  or  penalty  shall  have  been 
mitigated  by  the  provisions  of  the  Revised  Statutes,  such  provisions  shall  apply 
to  and  control  any  judgment  to  be  pronounced  after  the  said  statutes  shall  take 
etfect,  for  anv  offence  committed  before  that  time. 

6  7.  No  prosecution  for  any  offence,  or  for  the  recovery  of  any  penalty  or  for- 
feiture, pending  at  the  time  at  any  statutory  provision  shall  be  repealed,  shall  be 
affected  by  such  repeal  ;  but  the  same  shall  proceed  in  all  respects,  as  if  such 
provision  had  not  been  repealed  ;  except  that  all  such  proceedings  had  after  the 
time  when  the  Revised  Statutes  take  effect,  shall  be  conducted  according  to  the 
provisions  ot  the  said  statutes,  and  shall  be  in  all  respects  subject  to  the  said  pro- 
visions. ,  T     '        X    T  1 

§  8.  All  statutes  and  parts  of  statutes  wnich  were  repealed  or  abrogated  by,  or 
were  repugnant  to,  any  law  hereby  repealed,  and  which  have  not  been  re-enacted 
and  consolidated  in  tlie  Revised  Statutes,  shall  continue  to  be  so  repealed,  and 
shall  be  deemed  abrogated. 

§  9.  The  repeal  by  this  act,  or  any  statiite  or  part  of  a  statute  heretofore  repeal- 
ed, shall  not  be  construed  as  a  declaration  or  implication  that  such  statute  or 
part  of  a  statute  has  been  in  force  at  any  time  subsecp;ent  to  such  first  repeal. 

§  10.  Where  any  statute  not  hereby  repealed,  refers  to  and  adopts  any  statute 
or  part  of  a  statute  which  is  herein  repealed,  the  statute  or  part  of  a  statute  so 
referred  to  and  adopted,  shall  not  be  deemed  rei)ealed  by  the  provisions  of  this 
act,  but  shall  be  in  force  so  far  only  as  the  same  shall  have  been  so  adopted,  and 
for'no  other  purpose,  and  subject  to  the  provisions  of  the  two  next  sections. 

§  11.  But  if  the  statute  or  part  of  a  statute  so  referred  to  and  adopted,  shall 
have  been  revised  and  consolidated  in  the  Revised  Statutes,  all  provisions  con- 
tained therein  repugnant  to  or  inconsistent  with  those  ot  the  said  Revised  Stat- 
utes, shall  be  deemed  repealed  at  the  time  specified  in  this  act ;  and  every  such 
provision  so  referred  to  and  adopted,  which  shall  be  moditied  by  the  Revised 
Statutes,  shall  be  deemed  to  be  so  modi,  ed  in  respect  to  any  use  or  purpose,  for 
which  such  provision  is  herein  declared  to  be  in  force,  from  and  alter  the  time 
when  the  Revised  Statutes  shall  take  effect. 

§  12.  "Where  any  statute  or  part  of  a  stAtute,  which  is  not  hereby  repealed,  refers 
to  and  adopts  any  provision  or  rule  of  law  which  is  abrogated  or  modified  by  the 
Revised  Statutes,'  such  provision  or  rule  shall  be  deemed  to  be  so  abrogated  or 
modified,  as  the  case  may  be,  as  vv'ell  in  respect  to  such  statute  or  part  of  a  stat- 
ute not  repealed,  as  otherwise,  from  and  alter  the  time  when  the  Revised  Statutes 
shall  take  effect  ? 


CODIFICATION   OF  STATUTES.  115 

und  lastly,  llio  coneludiiig  clause  of  a  public  general  act,  the 
clause  providing  that  the  act  may  be  altered  and  repealed  in  the 
same  session  of  Parliament. 

The  d(;i"ect  of  legislative  language  is  found  in  its  intricacy  aiic' 
complication  ;  and  in  confoimdicg  the  cases  for  facultative  and 
i  nperative  lungiiuge,  "  maij,"  and  "  shall  /"  and  in  the  number  of 
limitations,  conditions  and  provisions  interposed  between  the 
nominative  case  and  its  verb,  or  any  other  two  dependent  words. 
As  a  question  of  composition  and  interi^retation,  apart  from  par- 
liamentary considerations,  great  inconvenience  results  fi-om  this 
accumulation  of  materials  in  one  clause,  from  the  constant  com- 
bination of  distinct  enactments.  Two  or  more  distinct  legal  sub- 
jects are  brought  together  in  the  same  sentence,  by  means  of  the 
same  copula.  This  always  renders  the  meaning  obscure,  and 
causes  the  frequent  necessity  for  the  application  of  the  intei-pre- 
tative  process,  redcloidi  swgula,  singulis. 

It  has  not  escaped  the  observation  of  lawgivers  and  jurists. 
of  other  nations  as  well  as  of  our  own,  that  owing  to  different 
interpretation  put  upon  laws,  expressed  in  the  same  general  terms, 
much  vexation  and  trouble  arise.  In  fact,  "  the  imcertainty  of 
the  law,"  w^hicli  originates  in  a  great  measure,  from  the  different 
intei-pretation  to  which  one  and  the  same  law  may  be  subject,  has 
become  proverbial.  It  has  therefore,  been  the  anxious  desire  of 
well  disposed,  and  intelhgent  legislators  in  other  coimtries,  to  avoid 
all  intei-pretation,  and  consequent  commentaries,  by  framing  codes 
of  law  so  exact,  so  perfect  and  complete,  as  to  render  interpretation 
superfluous.  It  was  one  of  the  great  objects  of  the  Prussian  code, 
promulgated  by  Frederick  the  Great,  as  was  therein  declared,  "to 
diminish  legislation,  and  to  make  lawyers  comparatively  useless." 
As  we  arc  informed  by  Las  Cases,  Napoleon  said  that  he,  once 
entertained  the  idea  that  all  principles  of  law  might  be  reduced 
to  a  few  concise  forms,  which  ought  to  be  combined  according  to 
iixed  rules,  similar  to  those  of  mathematics  ;  and  that  thus,  sim- 
plicity and  certainty  of  law  might  be  established.  He  soon,  how- 
ever, gave  up  this  idea,  when  he  came  to  discuss  the  various  parts 
of  the  French  Civil  Code,  with  the  other  members  of  the  com- 
mittee appointed  to  draw  up  that  work.  In  Bavaria,  commenta- 
ries upon  tlieii'  penal  code,  were  actually  prohibited.     The  king's 


116  CODIFICATION  OF  STATUTES. 

privy  cGQueil  under  the  sanction  of  the  government,  attempted, 
with  true  wisdom,  to  pubhsh  officially,  the  motives  and  explanations 
(something  after  the  manner  of  the  notes  of  the  revisors  of  our 
statutes,)  which  were  given  in  the  course  of  the  discussions  in  the 
council,  for  adopting  the  various  laws.  These  motives,  reasons, 
etc.,  were  drawn  up  by  them,  reduced  to  a  systematic  whole,  and 
published  in  three  volumes,  in  1813,  1814.  But  they  did  not  find 
it  equally  wise  to  prohibit  commentaries ;  for  those  who  advised 
the  king  so  to  do,  forgot,  that  as  they  felt  bound,  and  attempted 
to  explain  the  various  provisions  of  the  code,  it  would  be  found,  that 
theii'  own  explanations,  w'ould  carr}^  along  with  them  also,  the  nec- 
essity of  being  explained ;  and  this,  simply,  because  they  were 
drawn  up  in  human  language.  No  code  can  possibly  provide,  by 
any  attainable  perfection  and  simplicity  of  language,  for  all  spe- 
cific cases,  which  most  frequently  consist  of  a  combination  of 
simple  elements.  Nearly  every  case  is,  in  reality,  a  complex  one, 
and  because  the  various  relations  of  men  are  forever  changing,  a 
and  because  the  individuality  of  utterances,  with  expression  of 
ideas,  is  dependent  upon  uniformity  of  mental  endowments,  as 
well  as  uniformity  of  culture,  which  are  seldom,  or  never  to  be 
found.  Interpretation  never  has  been,  it  never  can  be  dispensed 
with.  It  is  a  necessity  that  lies  in  the  very  nature  of  things,  and 
wiU  remain,  so  long  as  the  character  of  the  human  mind  is  diver- 
sified, and  language  remains  imperfect. 

If  it  could  be  made  to  be  generally  recognized  that  the  essen- 
tials of  every  law  are  simple  ;  and  that  their  direct  expression  is 
the  perfection  of  law  waiting,  the  greatest  defect  of  our  statute 
law  would  cease.  It  is  beyond  a  doubt,  that  the  casus  legis  which 
can  be  described  in  a  ])rovision,  or  in  a  phrase  interpolated  into 
other  matter  by  way  of  limitation,  can  be  more  easily  expressed 
alone,  and  at  the  beginning  of  the  enactment.  It  is  equally  be- 
yond a  doubt,  that  its  proper  place  is,  at  the  beginning,  and  that 
it  is  a  misleading  the  reader  to  commence  an  enactment  as  if  it 
were  universal,  and  wind  it  up  by  a  parenthetical  quahfication  or 
proviso,  which  limits  it  to  certain  occasions  oiily.?> 

After  these  general,   but  it  is  trusted  not  misplaced  remarks 

a  Leibers  Hermeneuties,  cb.  2,  §  12. 

?>It  was  proposed  by  a  local  act  of  Parliament  to  pave  tbe  town  of  JJrigbton  and 
to  manage  its  poor.  The  act  was  entitled,  "To  manage  and  j^ave  tbe  town  ol 
Brighton  and  tbe  poor  tbereof." 


SAYING  CLAUSE.  117 

upon  the  imperfect  expression  of  tlic  Avill  of  ilic  Liwgivcr,  it  uill 
bo  proper  to  proceed  with  the  exact  cninncaution  of  the  parts  of 
a  statute. 

And  first  of  the  saving  clause. 

The  purview  of  an  act  may  be  qualified  or  restrained  by  a  sav- 
ing in  the  statute. a  A  saving  ni  a  statute,  is  only  an  exception  of 
a  special  thing  out  of  the  general  things  nieutioued  in  the;  statute.// 
But  a  saving  clause  in  a  statute,  wliere  it  is  diicctly  repugnant  t(j 
the  purview  or  body  of  the  act,  and  eainiot  stand  a\  ithout  render- 
ing the  act  inconisistent,  and  destructive  of  itself,  is  to  be  rejected. r; 
But  ajjart  from  a  direct  repugnacy,  and  short  of  a  destructive 
saving,  the  general  words  in  one  clause  of  a  statute  may  be  re- 
strained by  the  particular  words  in  a  subsequent  part  of  the  same 
statute.cZ 

AVhere  a  general  intention  is  expressed,  and  the  act  also  expres- 
ses a  partieidar  intention  incompatibU;  with  tlu^  general  intention, 
the  particular  intention  is  to  be  considi'icd  in  the  nature  of  an 
exception. r  While,  if  a  ])articular  tiling  be  given  or  limited  ni 
the  precetling  parts  of  a  statute,  this  shall  not  be  taken  away  or 
altered  by  any  subsequent  general  Avords  of  the  same  statute^ 
Indeed,  where  the  intention  of  the  legislature  is  not  apparent  to 
that  purpose,  the  general  words  of  another  and  later  statute  shall 
not  repeal  the  particidar  provisions  of  a  former  one. 7  "  It  cannot 
be  contended,"  said  Lord  Kenyon,  tliat  a  subsequent  act  of  Par- 
liament will  not  control  the  provisions  of  a  prior  statute,  if  it  were 
intended  to  have  that  operation  ;  but  there  are  several  cases  in 
the  books  to  shew,  that  when  the  intention  of  the  legislature  was 
apparent  that  the  subsequent  act  should  not  have  such  an  opera- 
tion, there,  even  though  the  words  of  such  statute  taken  strictly 
and  gi'ammatically  would  repeal  a  former  act,  the  courts  of  law, 
judging  for  the  benefit  of  the  subject,  hav(;  held  that  they  ought 
not  to  receive  such  a  construction."//  And  if,  in  the  same  act  of 
Parliament,  there  be  one  clause  wliich  applies  to  a  particular 
case,  and  another  which  is  conceivcnl  in  general  terms,  the  former 
shall  not  restrain  the  signification  of  the  latter,  i'" 

a  10  Mod.  155. 

?>Hollowell  V.  Cori.oriilion  of  Bri(lj,'f\vattr.  2  Aiul.  E.  1^2. 

c  Plowd.  5G5.  d  Hex  v.  Archbishop  of  .Vrmagh,  8  Mod.  8. 

e  Churchill  v.  Crease,  5  Bing.  180;  referred  to  iu  Terrington  and  Hargravcs. 
ib.  492-3. 

/Stanton  v.  the  University  of  Oxfoi-d,  1  Jon.  20. 

rf  Gregory's  case,  6  Kcp.  19  b;  Foster's  case,  11  Eep.  G8  I). 

h  Williams  v.  Pritchard,  4  T.  R.  2,  4.  i  2  T.  R.  1G4. 

Note  10. — A  saving  clause  in  an  act  of  Congress,  saving  State  laws  then  in 
force,  does  not  confine  or  validate  such  State  law.  If  such  State  law  contains  a 
provision  impairing  the  obligation  of  contracts,  the  act  of  congi-ess  merelj'  leaves 


lis  A  TROYISO. 

A  proriso  is  something  engrafted  upon  a  preceding  enactment,  a 
and  is  legitimately  used,  for  the  piupose  of  taking  special  cases 
out  of  the  general  enactments,  and  providing  specially  for  them. 
In  its  abuse,  it  contains  all  unconnected  matters ;  and  disposes 
of  whatever  is  incapable  of  combination  with  the  rest  of  any 
clause.  It  was  held  by  all  the  Barons  of  the  Exchequer,  in  the 
case  of  the  Attornoy-Creneral  v.  The  Governor  and  Company  of 
the  Chelsea  AVaterworks,  h  that  where  the  proviso  of  an  act  of 
Parliament  was  directly  repugnant  to  the  purview  of  it,  the  pro- 
viso should  stand  and  be  held  a  repeal  of  the  purview,  because  it 
was  said,  it  speaks  the  last  intention  of  the  lawgiver.  It  was 
compared  to  a  will,  in  which  the  latter  part,  if  inconsistent  with 
the  former,  supersedes  and  revokes  it.  It  has  been  remarked c 
upon  this  case  in  Fitzgibbon,  that  a  7,) roy /.so  repugnant  to  the  pur- 
view, renders  it  equally  nugatory  and  void  as  a  repugnant  sadnr/ 
I 'la  use;  and  it  is  difficult  to  see  why  the  act  should  be  destroyed 
by  the  one,  and  not  by  the  other ;  or  why  the  proviso  and  the 
sa-sdng  clause,  when  inconsistent  with  the  body  of  the  act,  should 
not  both  of  them  be  equally  rejected.  The  distinction  in  the  effect 
and  operation  of  a  saving  clause  and  of  a  proviso  in  a  statute, 
will  be  found  in  the  books,  laid  down  as  positive,  and  wdthout 
quahtication  ;  but  the  reason  of  the  distinction,  is  certainly  not 
very  apparent." 

a  9  B.  &  C.  835.  h  Fitzg.  195;  Bacon,  Ab.  tit.  Statute. 

c  Kent's  Comm.  on  American  Law,  vol,  1,  p.  430. 
them  bj'  snch  saving  clause,  to  operate  so  far  as  constitutionally  they  may.  Stur- 
ges  V.  Crowninsliield,  4  Wlieat.  12'2.  A  saving  clause  in  a  statute  is  to  be  rejected 
when  it  is  directly  rei3ugnant  to  the  purview  or  body  of  the  act,  and  £ould  not 
stand,  without  rendering  the  act  inconsistent  and  destructive  of  itself.  1  Kent 
Com.  462;  Plowd."565,  8  Taunt.  13,  18. 

The  purview  of  an  act  may  be  qualilied  or  restrained  by  a  saving  clause  con- 
tained in  it.  This  clause  is  only  an  exemption  of  some  special  thing,  out  of  the 
qenernl  things  mentioned  in  the  act;  but  a  saving  clause  therein  which  is  directly 
repugnant  to  the  purview  of  the  act,  and  cannot  stand  without  rendering  the  act 
inconsistent  and  destructive  of  itself,  is  to  be  rejected.  Milton  v.  Elliot,  8  Taunt, 
13.     This,  however,  is  not  the  rule  as  regards  provisos. 

XoTE  11. — The  oflice  of  a  proviso,  generally,  is  either  to  except  something 
from  the  enacting  clause,  to  restrain  its  generality,  or  to  exclude  some  jjossi- 
ble  ground  of  misinterpretation  of  it,  as  extending  to  cases  not  intended  by  the 
legislature  to  be  brought  within  its  purview.  Minis  v.  United  States,  15  Peters, 
i23;  Wyman  v.  Southard,  10  Wheat.  1-30. 

A  proviso  in  a  statute,  is  to  be  .strictly  construed;  it  takes  no  case  out  of  the 
enacting  clause  which  is  not  lairly  within  the  terms  of  the  proviso.  U.  S.  v. 
Dickson,  15  Pet.  141.  The  office  of  a  proviso,  generally  is,  eilh&rto  except  some- 
thing from  the  enacting  clause,  to  qualify  or  restrain  its  generality,  or  to 
exclude  some  possible  ground  of  misinterpretation  of  its  extending  to  cases  not 


A  riioviso.  119 

There  is  a  known  distinction  in  the  l;l^\  Lc.wi  in  an  exception 
in  the  purview  of  tlie  act  and  a  pr(niso.  If  there  be  an  excep- 
tion in  the  enacting;  chiuse  of  a  statute,  it  nnist  be  nef^atived  in 
pleading  ;  a  separate  i)roviso  need  not ;  c  ami  that,  altJiough  it  is 
found  in  the  same  section  of  the  avi,  if  it  be  not  referred  to,  and 
engrafted  on,  tlie  enacting  clause.^/  "  Tlu^  rule  is,"  said  Mr.  Jus- 
tice Ashurst,  in  Spiers  v.  Parker,  "  that  any  man  who  will  In-ing 
an  action  for  a  penalty  on  an  act  of  Parliament,  must  show  him- 
self entitled  under  the  enacting  clause  ;  but  if  there  bo  a  subse- 
quent exemption,  that  is  a  matter  of  defence,  and  the  other  party 
must  show  it,  to  exempt  himself  from  the  penalty."  Mr.  Justice 
BuUor  said,  "  I  do  not  know  any  case  for  a  i>enalty  on  a  statutes 
Avliere  there  is  an  exception  in  the  enacting  elausej  that  tlu;  plain- 
tifi'  must  not  show  that  the  i)arty  wliom  lie  sues,  is  not  within  it." 
So,  in  a  crinnial  case.  Lord  Mansfield  said,  "what  comes  by  way 
of  proviso  in  a  statute,  must  be  insisted  on  for  the  pmi^oses  of 
defence  by  the  party  accu.sed  ;  but  where  exceptions  are  in  the 
enacting  part  of  the  law%  it  must  in  the  indictment  charge  that 
the  defendant  is  not  Avithin  any  of  them."'/  " 

rt  1  T.  E.  141 ;  8  T.  R.  542.  h  1  15.  and  A.  94. 

c  Fost.  430,  1  East  E.  GG4;  Burr  E.  148,  Eiist.  V.  C.  1G7. 

intended  to  be  brought  within  its  purview.  Minis  v.  U.  S.  lo  Pet.  423;  Huydka- 
per  V.  Burrus,  1  Wash.  C.  C.  E.  119. 

If  a  proviso  in  a  statute,  be  directlj-  contrary  lo  the  jnirview  ot  the  statute,  the 
proviso  is  good,  and  not  the  purview.  Townseud  v.  Brown,  4  Zabrisb,  (N.  J.) 
80;  Eex  v.  Justices  of  Middlesex,  2  B.  and  Adol.  818.  But  contra, — "a proviso 
repugnant  to  the  purview  of  the  statute,  renders  it  equally  nugatory  and  void,  as 
a  repugnant  saving  clause;  and  it  is  difficult  to  see  why  the  act  should  be  des- 
troyed by  the  oue,  and  not  by  the  other,  or  why  the  proviso  and  the  saving  clause 
when  inconsistent  with  the  body  of  the  act,  should  not  both  of  them  be  equally 
rejected."  1  Kent  Com.  463.  And  it  is  a  settled  rule,  that  where  there  is  a  pro- 
viso to  a  grant  which  is  repugnant  to  the  grant  itself,  the  grant  shall  be  good,  and 
the  proviso  only  void.  Mason  v.  Boom  Co.  3  Wall.  Jr.  C.  C.  E.  A  proviso  is  a 
limitation  or  exception,  to  the  authority  conferred,  the  effect  of  which  is  to 
declare,  that  the  one  shall  not  operate,  or  the  other  be  exercised,  unless  in  tho 
case  provided.     Voorhees  v.  Bank  of  United  States,  10  Peters,  471. 

So  it  seems,  that  a  saving  clause  in  a  statute  in  the  fonn  of  a  proviso,  restricting 
in  certain  cases  tho  operation  of  the  general  language  of  tho  enacting  clause, 
was  not  void,  though  the  proviso  be  repuguant  to  the  general  language  of  tho 
enacting  clause.  Tho  true  principle  undoubtedly  is,  that  the  sound  interpretation 
and  meaning  of  the  statute,  on  a  view  of  the  enacting  clause  and  proviso,  taken 
and  construed  together,  is  to  prevail.  If  the  in-iuciple  object  of  the  act  can  be 
accomplished  and  stand,  under  tho  restriction  of  the  saving  clause  or  pro^^so, 
tho  same  is  not  to  bo  held  void  for  repugnancy.  1  Kent  Com.  463,  note  a ;  Savings 
Bank  v.  Makin,  23  Maine  E.  360. 

Note  12. — It  may  be  as  well  here,  to  notice  the  distinction  between  a  proviso 
and  an  exception  contained  in  the  purview  of  an  act,  although  the  excej^tiou  is  a 


120  A   PROVISO. 

By  the  statute,  33  Geo.  3,  c.  13,  the  indorsement  by  that  act 
du-ected  to  be  made  by  the  clerk  of  the  ParUaments,  on  every  act 
of  Parliament,  of  the  day,  month,  and  year,  when  the  same  shall 
have  passed,  and  shall  have  received  the  royal  assent,  shall  be 
taken  to  be  A  paet  op  such  act,  &c. 

Such  are  the  parts  of  a  statute  ;  the  next  chapter  will  be  a  con- 
sideration of  its  quahties  and  incidents. 

question  that  relates  chiefly  to  pleading.  An  exception  in  the  statute,  must  be 
negatived  in  pleading,  but  a  proviso  need  not,  and  this  seems  to  be  upon  the 
ground  that  an  exemption  is  matter  of  defence  which  a  party  must  show,  to  exempt 
himself  from  the  liability  or  penalty.  Spiers  v.  Parker,  1  Tenn.  R.  141.  So,  too 
it  has  been  held,  in  case  of  an  exception,  the  plaintiff  who  sues,  must  show  that 
the  party  whom  he  sues,  does  not  come  within  it.  1  Kent  Com.  4.63;  People  v. 
Toynbee,  11  How  Pr.  E.  333;  1  Chitt.  Cr.  L.  284. 


QUALITIES  AND   INXIDENTS.  121 


CIIAPTEU  V 


OF  THE  QU.VLITIES,  INCIDENTS,  AND  GENEIIAL  RULES  AND  MAXIMS 
OF  INTEKPRETATION  OF  STATUTES. 

Among  all  civilized  nations,  we  have  always  seen,  formed  by 
the  side  of  the  sanctuary  of  the  laws,  and  under  the  controling 
guidance  of  judicial  and  legislative  wisdom,  a  fund  of  maxims, 
rules,  and  decisions  of  doctrine,  which  have  been  sifted  by  the 
constant  practice,  and  the  collision,  consequent  upon  judicial 
debates.  These  nilcs  and  maxims  have  been  incessantly  increas- 
ing the  store  of  wisdom  and  knowledge  thus  acquired,  until  they 
have  become  the  supplement  of  legislation  in  the  estabhshment 
of  law,  and  are  regarded  as  the  highest  attainment  towards  the 
perfection  of  human  reason,  in  the  exposition  of  law. 

The  judicial  power  established  to  declare  and  apply  the  laws, 
needs,  and  is  gi'eatly  aided,  by  such  a  fund  of  rales  and  maxims. 
These  maxims  apply  equally  to  all  men.  They  regard  men  in  the 
aggregate,  never  as  individuals.  They  are  rules  as  proper  to  be 
known  to  the  legislator,  as  to  the  magistrate,  though  their  duties 
are  variant.  The  science  of  the  legislator,  and  his  consequent 
duty,  consists  in  searching  in  each  case  for  principles  most  favor- 
able to  the  common  welfare ;  that  of  the  judge,  is  to  put  these 
principles  in  action ;  to  extend  them  by  a  wise  and  thoughtful 
application  to  private  assumptions ;  and  to  study  the  spirit  of  the 
law,  when  perhaps,  the  letter  destroys. 

Perhaps  no  wiser  man  than  Lord  Bacon,  ever  graced  the  legal 
profession.  In  the  exercise  of  his  wisdom,  he  left  a  collection 
of  legal  maxims  for  study,  to  those  who  should  come  after  him. 
His  reasons  for  making  the  collection  are  so  profound,  it  may  be 
of  advantage  for  all  to  study  them.  We  have  adopted  his  rea- 
sons. He  says :  "  having,  from  the  beginning,  come  to  the  study 
of  the  laws  of  this  realm,  with  a  mind  and  desire  no  less  that  the 
same  laws  should  be  the  better  by  my  industry,  than  that  myself 
1(5 


122  GEKEEAL  IIULES  AND  MAXIMS   OF   IN'TEErRETATION. 

should  be  the  better  bj'  the  knowledge  of  them ;  I  do  not  find 
that,  Anthout  the  help  of  anthority,  I  can  in  any  kind,  confer  so 
profitable  an  addition  nnto  that  science,  as  by  the  collecting  the 
rules  and  gromids  dispersed  throughout  the  body  of  the  same 
laws.  For  hereby',  no  small  light  will  be  given.  In  new  cases, 
such  wherein  there  is  no  direct  authority,  to  sound  into  the  true 
conceit  of  the  law,  by  depth  of  reason.  In  cases  wherein  the 
authorities  do  square  and  vary,  to  confirm  the  law,  and  make  it 
received  one  way.  And  in  cases  where  the  law  is  cleared  by 
authority  ;  yet,  nevertheless,  to  see  more  profoundly  into  the  rea- 
sons of  such  judgments  and  ruled  cases,  and  thereby  to  make 
more  use  of  them  for  the  decision  of  other  cases,  more  doubtful. 
So  that  the  uncertainty  of  the  law,  which  is  the  principle  and 
most  just  challenge  that  is  made  to  the  laws  of  our  nation  at 
this  time,  will,  by  this  new  strength  laid  to  the  foundation,  some- 
what the  more  settle,  and  be  corrected.  Neither  wall  the  use 
hereof  be  only  in  the  deciding  of  doubts,  and  helping  .soundness 
of  judgment,  but  further,  in  gracing  of  argument, — in  correcting 
unprofitable  subtlety, — and  in  reducing  the  same  to  a  more  sound 
and  substantial  sense  of  law ;  in  reclaiming  vulgar  errors,  and 
generally,  in  the  amendment,  in  some  measm-e,  of  the  very  nature 
and  complexion  of  the  whole  law." 

DwAREis'  Maxims. 

I.  "An  act  of  Parhament"  (says  Dwarris)  binds  all  persons, 
but  such  as  are  specially  saved  by  it.  '_'  As  if,"  says  Sir  E.  Ander- 
son, "  a  person  be  tenant  in  tail,  and  it  is  enacted  that  he  shall 
have  his  land  to  him  and  his  heirs,  he  has  the  fee  and  the  tail  is 
determined."  Such  is  the  example  given  ;  and  it  is  to  be  hoped, 
it  illustrates  the  rule  ;  but  then  foUows  another  case,  of  a  statute, 
"  taking  his  land  from  A.  and  giving  it  to  B."  simxMciter  ;  the  land 
goes  from  A.  et  touts  ses  droits  queux  il  avet  devant,  sount  extinct, 
sinon  que  sont  save  esijecialment  jmr  Us  irrovises  en  le  act.''a 

II.  A  statute  which  gives  corporal  punishment  does  not  bind 
an  infant:  contra  of  other  statutes,  if  they  do  not  except  infants./; 

III.  Every  statute  made  against  an  injury,  gives  a  remedy  by 
action,  expressly  or  impliedly.c 

IV.  An  act  of  Parhament  cannot  alter  by  reason  of  time ;  but 
the  common  law  may,  since  ccssante  ratione  cessat  Icx.d 

a  Aud.  1 18,  pi.  82.  c  2  Inst.  55. 

'jDoctr   i- Student,  lib.  2  fol.  113.  dStr.   190. 


DWAltltlS    KUIJ;S    AND    MAXIMS.  123 

V.  When  statutes  arc  made,  tliero  are  some  things  Avhich  are 
exempted  and  fore-prized  out  of  the  provisions  thereof,  by  the 
Law  of  reason,  though  not  expressly  mentioned  :  thus,  things  for 
necessity's  sake,  or  to  prevent  a  faihire  (jf  justice,  are  excepted 
out  of  statutes. a 

VI.  Whenever  an  act  gives  any  thing  generally  and  Avithout  any 
special  intention  declaretl,  or  rationally  to  be  inferred,  it  gives  it 
always  subject  to  the  general  control  and  order  of  the  common 
law"  h 

VII.  Wlunicver  a  statute  gives  or  jn-ovides  any  thing,  the  com- 
mon law  provides  all  necessary  remedies  and  recpiisites.  c 

VIII.  In  statutes,  incidents  arc  always  supplied  1  )y  intendments; 
in  other  words,  whenever  a  power  is  given  by  a  statute,  every 
thing  necessary  to  the  making  of  it  effectual,  is  given  by  impHca- 
tion  ;  for  the  maxim  is  Qutnulo  lex  aliqaid  concedif,  conccderc 
videtur  et  id,  2K'r  quod  dcvenitur  ad  illud.  d 

The  statute  of  Gloucester,  C.  5.  giving  an  action  of  waste  against 
tenant  for  life  and  tenant  for  years,  doth  impliedly  give  authori- 
ty to'  him  in  the  reversion,  by  himself  or  by  another,  to  enter,  to 
see  if  any  Avaste  l)e  don(\ 

If  an  action  of  waste  should  now  be  given  by  a  statute  against 
tenant  in  tail  after  possibility  extinct,  treble  damages  would, 
although  not  mentioned,  be  recoverable,  c  for  such  damages  are 
recoverable  under  a  former  statute,  by  which  an  action  of  waste 
is  given  ;  and  wherever  an  old  action  is  given  in  a  new  case,  all 
that  before  appertained  to  the  action  is  likewise  given. 

IX.  Quando  aUquid,  'prohihetur,  jn'ohihetur  et  omne,  per  quod 
dcvenitur  ad  illud. 

X.  Wherever  the  provision  of  a  statute  is  general,  every  thing 
which  is  necessary  to  make  such  provision  effectual,  is  supphed 
by  the  common  law/ 

XI.  If  an  offence  be  made  felony  by  a  statute,  such  statute 
does  by  necessary  congequence,  subject  the  offender,  to  the  like 
attainder  and  forfeitiu'e,  and  does  require  the  like  constuction  as 
to  those  who  shall  be  accounted  accessaries  before  or  after  the 
fact,  and  to  all  other  intents  and  purposes,  as  a  felony  at  the  com- 
mon law  does,  g 

XII.  Misprision  of  felony  is  as  well  incidental  to  a  felony  crea- 
ted by  a  statute,  as  to  one  at  the  common  law. 

XIII.  Lex  lino  ore  omncs  alloquitnr  ;  h  a  maxim  Avhich  does  not 
require  illustration,  but  which  Lord  Coke  says  is  the  pride  of  the 
English  law  ;  and  it  is  pre-eminently  so,  of  the  written  law  ;  which 
lays  down  one  clear  and  certain  rule  for  all  descriptions  of  per- 

aPlow.  Comm.  13  b.;  2  Inst.  118.  h  Show.  455. 

c  The  Protector  v.  Ashfield,  Hard.  (\2.     d  2  lust.  306  ;  12  Ecp.  130,  131. 

e  Bro.  Wast.  pL  68.  /  2  lust.  48. 

g  1  Inst.  235;  2  Inst-  222,  Bac.  Abridg.  tit.  Statute.        h  2  Inst.  184. 


124  D^YAl;l;Is  kules  and  maxims. 

sons,  and  is  both  known  and  invariable.  For,  the  written  and 
statute  hiw,  being  of  old  duly  and  formally  promulgated  to  the 
people,  could  never  be  what  Lord  Bacon  says  of  lienry  VII's 
laws,  "  as  a  nemo  scif ;"  and  of  these  rules  of  conduct,  no  judge, 
producing  a  manuscript  decision  of  some  former  sage  of  the  law, 
an  unreported  case,  can  say  :  "  Lo !  I  have  the  law  in  my  side- 
pocket  !"  e 

XIV.  Nemo  pnnifHr  sine  injuria,  facto,  sen  defalto. 

The  statute  of  Gloucester  pro\aded,  that  in  the  case  of  a  dis- 
seisor ahening  lands  and  not  being  able  to  satisfy  the  damages, 
they,  to  whose  hands  the  tenements  shall  come,  shall  be  charged 
with  the  damages,  <tc.  Now,  if  the  tenant  cometh  to  the  land  by 
act  of  law  which  he  cannot  withstand,  and  where  there  is  no  act 
or  default  in  him,  he  shall  not  be  charged.  As  if  the  disseisor 
alien  to  A.  and  his  heirs,  and  A.  dieth  without  heir,  the  law  (that 
there  may  be  a  tenant  to  the  pra'cijic)  casts  the  land  upon  the  lord. 
In  this  case,  if  the  lord  doth  not  take  any  profits  of  the  land,  m  a 
writ  brought  against  him  for  the  land,  the  lord  may  plead  the  spe- 
cial matter,  and  so  discharge  himself  from  the  damages  ;  for  albeit 
he  be  a  tenant  of  the  land,  j'et  is  he  no  tenant  (against  his  will) 
within  the  meaning  of  this  law,  because  there  is  no  Avrong  or 
default  in  liim.a 

XV.  Actus  legis  nemini  est  damnosns : — An  act  for  enlarging  the 
term  granted  to  a  patentee  for  the  enjoyment  of  his  patent,  pro- 
vided that  in  eacli  case  the  power,  privilege,  or  authority  gi-anted 
by  the  letters  patent  should  become  vested  in  more  than  five  per- 
sons or  then"  representatives,  at  any  one  time,  otherwise  than  by 
devise  or  succession,  all  liberties,  privileges,  &c.,  should  cease. 
The  patentees  having  become  bankrupts,  it  was  held  that  this 
clause  apphed  only  to  an  assignment  by  act  of  the  party,  and  not 
to  an  assignment  or  transfer  by  operation  of  loAv.b 

XVI.  Absoluta  sententia  exjjositore  non  iyuliget :  "  this  is  the  case," 
says  Lord  Coke,  c  "  where  the  words  are  plain  without  any  scru- 
ple, and  absolute  without  any  saving." 

XVII.  Expressio  eorum  quce  tacite  insunt,  nihil  operatiir :  as  where 
an  advowson  descending  to  divers  coparceners,  they  do  make 
composition  to  present  by  turns ;  being  no  more  than  the  law 
doth  appoint,     iit  West'  mr.  2,  c.  5.(1 

XVIII.  Qucecunrfic  intra  rationcm  legis  inveniiiniur,  inira  ipsam 
legem,  esse  judicanttir. 

XIX.  So,  Lex  henejicialis  rei  consimili  remedium  prcestcd  ;  max- 
ims too  obvious  in  their  application  to  need  any  enforcement. 

a  3  Inst,  47,  49,  50;  1  Hawk.  c.  41,  §  4.         h  Watkins  ou  Couveyancing. 

c  2  Inst. 

(1  Bloxain  and  another,  assignees,  v.  Elsee,  6  B.  and  C.  1G9. 

e  2  Inst.  533.  /  2  Inst.  365. 


QUALITIES  AND   INCIDENTS   OF  STATUTES.  125 

The  qualities,  and  incidents  of  statutes,  as  stated  in  the  fore- 
going nineteen  rules  by  Mr.  Dwams,  which  give  their  nature, 
parts,  and  properties,  with  incidental  rules  of  inteqiretation,  may 
be  ai)propriately  followed  by  the  nxlcs  of  interpretation  of  other 
distinguished  writers  on  the  same  subject.  Grotius,  Puffendorf, 
Vattel,  Eutherford,  and  Domat,  have  each  devoted  a  chapter  to 
this  subject  of  inteii)retation ;  the  doctrine  and  manifest  equit}' 
and  justice  of  which,  have  obtained  general  approbation,  and  are 
cited  by  commentators  and  distinguished  jurists,  as  being  wise 
and  well  established  ;  rules,  containing  a  combination  of  profound 
reasoning,  with  perspicuous  and  logical  arrangement. 

By  interpretation,  we  speak  of  a  necessity  arising  from  the 
imperfection  of  language  as  a  medium  of  expressing  the  inten- 
tion. Interpretation,  is  the  life  of  what  would  otherwise  be  the 
dead  letter.  Necessity,  therefore,  demands  rules  or  laws  of  inter- 
pretation. These  rules  are  fixed  principles,  deduced  from  right 
reason  and  rational  equity,  and  are  adopted  by  universal  consent 
of  nations,  states,  and  lawgivers.  In  all  treaties,  conventions, 
and  statutes,  inasmuch  as  language  is  the  instrument  or  medium 
of  expressing  the  intent ;  circumstances,  not  the  time  forseen, 
give  rise  to  different  views,  and  sometimes  to  apparent  contradic- 
tions, arising  from  the  language  of  the  same  instniment.  This 
creates  a  necessity  for  interpretation.  Sometimes  the  language 
of  a  treaty,  statute,  or  compact  is  obscure,  sometimes  the  words 
are  ambiguous,  sometimes  they  express  the  meaning  so  imper- 
fectly as  either  to  fall  short  of  expressing  the  true  intention,  or 
as  not  to  express  the  whole  of  it,  or  else  exceed  the  intention  and 
express  more  than  was  designed.  Both  the  end  and  the  means 
of  interpretation,  will  distinguish  it  from  crifieism.  The  end  which 
criticism  alms  at,  is  to  find  out  what  arc  the  words  of  the  instru- 
ment or  wi'iter ;  whether  for  instance,  it  is  forged  or  genuine  ; 
whether  material  parts  have  been  added,  or  omitted,  erased  or 
altei'cd.  The  end  inteiTiretation  aims  at,  is  to  find  out  the  intent 
of  the  statute,  instniment,  or  WTiter ;  to  clear  up  the  meaning  of 
words  if  they  are  obscm-e ;  to  ascertain  tlieii*  sense  if  they  arc 
ambiguous  ;  and  to  determine  the  design  where  the  words  express 
it  imperfectly.  We  must  not  confound  the  two.  The  interprdor  s 
work  does  not  begin  till  the  critic's  is  euded.a 
a  Rutherford's  lust.  4.02. 


I.2G  tattel's  rules. 

We  make  tlie  following  extracts,  being  forty-five  maxims,  fi'om 
V^attel,  which  he  apphes  as  well  to  treaties  and  statutes,  as  to 
Dther  compacts.     He  saj's  : 

"It  is  necessary  to  estabhsh  rules  founded  on  reason,  and 
authoiized  by  thelaw  of  nature,  capable  of  di£l\ising  light  over 
what  is  obscure,  of  determining  what  is  uncertain,  and,  of  frus- 
trating the  attempts  of  a  contracting  power  void  of  good  faith ; 
beginning  with  maxims  of  justice  and  equity," 

1.  "  The  first  general  maxim  of  interpretation  is,  that  it  is  not 
permitted  to  interpret  what  has  no  need  of  interpretation.  When 
an  act  is  conceived  in  clear  and  precise  terms ;  when  the  sense  is 
manifest,  and  leads  to  nothing  absurd  ;  there  can  be  no  reason  to 
refuse  the  sense  which  this  treaty  naturally  presents.  To  go 
elsewhere  in  search  of  conjectures,  in  order  to  restrain  or  extin- 
guish it,  is  to  endeavor  to  elude  it."  '    • 

2.  "  If  he  who  can,  and  ought  to  have  explained  himself  clearly 
and  plainly,  and  has  not  done  it,  it  is  worse  for  him  ;  he  cannot 
be  allowed  to  introduce  subsequent  restrictions  Avhich  he  has  not 
expressed." 

8.  "  Neither  the  one  or  the  otlu^r  of  the  interested  parties  or 
contracting  powers,  has  a  right  to  intei-pret  the  act  for  himself." 

4.  "  On  every  occasion  when  a  person  has,  and  ought  to  have 
shown  his  intention,  w^e  take  it  for  true  against  him  what  he  has 
sufficintly  declared.  In  order  to  know  the  true  sense  of  the  con- 
tract, attention  ought  principally  to  be  paid  to  the  words  of  him 
who  promises,  for  he  voluntarUy  binds  himself  by  his  words.  If 
the  words  of  him  who  accepts  the  conditions,  relate  to  the  words 
of  him  who  offers  them,  we  ought  to  regulate  ourselves  by  the 
latter." 

5.  "  It  is  a  c[uestion  to  know  what  the  contracting  powers  have 
agreed  upon,  in  order  to  determine  precisely  on  any  particular 
occasion,  wdiat  has  been  promised  and  accepted ;  not  only  what 
one  of  the  parties  has  had  the  intention  to  promise ;  but  also  what 
the  other  has  reasonably  and  sincerely  thought  to  be  promised, 

Note  1.— This  maxim  or  rule  has  been  adopted  in  this  State,  in  the  adjudica- 
tions of.  the  courts.  Jackson  v.  Lewis,  17  John.  477  ;  Waterford  and  "Whitehall 
Turnpike  Co.  v.  People,  9  Barb.  170  ;  People  v.  N.  Y.  Cent,  E.  E.  Co.  13  N.  Y. 
Pw.  80. 


vattel's  ituuis.  127 

aud  upon  uliicli  lie  must  have  regulated  Lis  acceplanee.  Tlio 
interpretation  of  every  act,  aud  of  evei-y  treaty  ought  to  be  made 
according  to  certain  rules,  proper  to  determine  tlie  sense  of  tliena, 
such  as  the  parties  concerned  must  naturally  have  understood 
when  the  act  was  prepared  and  accepted." 

G.  "  Since  the  lawful  inteiioretation,  ought  to  tend  only  to  the 
discovery  of  the  thoughts  of  the  author  ;  as  soon  as  we  meet  with 
any  obscurity,  we  should  seek  for  what  was  2^i'^>l^'djly  in  tin; 
thoughts  of  those  who  diuw  it  up,  and  to  inteqiret  it  accordingly. 
This  is  the  general  rule  of  all  interpretations.  It  jiarticularly 
serves  to  hx  the  sense  of  certain  ■  expressions,  the  signification  of 
which  is  not  sufficiently  determined." 

7.  "  The  contracting  powers  are  obliged  to  express  themselves 
in  such  a  manner,  as  that  they  mutually  understand  each  other. 
This  is  manifest  from  the  nature  even  of  the  act.  Those  who  con- 
tracted concurred  in  the  same  will ;  they  agreed  to  desire  tlui 
same  thing  ;  and  how  could  they  agree,  if  they  did  not  understand 
it  perfectly." 

S.  "  In  interpretation,  we  ought  not  to  deviate  from  the  common 
-.  .>()!'  the  language,  at  least  if  we  have  not  very  strong  reasons 
for  it.  In  all  human  afiairs,  where  there  is  a  want  of  certainty? 
we  ought  to  follow  probability." 

!).  "Languages  vary  incessantly,  and  the.  signification  and  force 
of  words  change  with  time ;  therefore,  when  an  ancient  act  is  to  bo 
interpreted,  we  should  know  the  common  use  of  terms  at  the  time 
when  it  w'as  WTitten ;  and  this  is  known  by  carefully  comparing 
with  each  other,  an  act  of  the  same  date,  and  cotemporary  wri- 
ters." 

10.  "  Words,  are  only  designed  to  express  the  thoughts ;  thus, 
the  true  signification  of  an  expression  in  common  use,  is  the  true 
idea  which  custom  has  affixed  to  that  expression." 

11.  "  Technical  terms,  or  terms  proper  to  the  arts  and  sciences, 
ought  commonly  to  be  interpreted  according  to  the  definition 
given  of  them  by  the  masters  of  the  art,  or  persons  versed  in  the 
knowledge  of  the  art  or  science  to  which  the  term  belongs." 

12.  "  Interpretation  should  only  tend  to  the  discovery  of  the 
will  of  the  contracting  power.  We  should  then  attribute  to  each 
term,  the  sense  which  he  who  speaks  had  probably  in  his  mind." 


128  VATTELS   IIULES. 

13.  "  "We  ought  always  to  give  to  expressions,  the  seuse  most 
suitable  to  the  subject,  or  to  the  matter  to  whicli  they  relate." 

14.  "  If  any  one  of  those  expressions  that  have  many  different 
sigTiifications,  are  found  more  than  once  in  the  same  piece,  -we 
cannot  make  it  a  law,  to  take  it  every  where  in  the  same  signifi- 
cation." 

15.  "  Every  interpretation  that  leads  to  an  absurdity,  ought  to 
be  rejected." 

IG.  "  The  interpretation  which  renders  a  treaty  (or  statute)  null 
and  void,  cannot  be  admitted  ;  it  is  an  absurdity  to  suppose  that 
after  it  is  reduced  to  terms,  it  means  nothing.  It  ought  to  be 
interpreted  in  such  a  manner,  as  that  it  may  have  effect,  and  not 
to  be  found  vain  and  illusive." 

17.  "  If  he  who  has  expressed  himself  in  an  obscure  or  equiv- 
ocal manner,  has  spoken  elsewhere  more  clearly  on  the  same  sub- 
ject, he  is  the  best  interpretor  of  himself.  We  ought  to  interpret 
his  obscure  or  vague  expressions  in  such  a  manner,  that  they  may 
agree  with  those  terms  that  are  clear  and  without  ambiguity 
which  he  has  used  elsewdiere,  eitlier  in  the  same  treaty  or  some 
other  of  the  like  kind." 

18.  "The  connection  and  train  of  the  discourse,  is  another  source 
of  interpretation.  We  ought  to  consider  the  discourse  together, 
and  in  order  perfectly  to  conceive  of  the  sense  of  it,  and  to  give 
to  each  expression  not  so  much  signification  as  it  may  receive  in 
itself  alone,  as  that  it  ought  to  have  from  the  thread  and  si:)irit 
of  the  discourse." 

19.  "  The  interpretation  ought  to  be  made  in  such  a  manner, 
that  all  the  parts  appear  consonant  to  each  other  ;  that  what  fol- 
lows, with  what  went  before  ;  unless  it  manifestly  appear  that  by 
the  last  clauses  something  is  changed  that  went  before." 

20.  "  The  reason  of  the  law  or  treaty,  that  is,  the  motive  which 
led  to  making  of  it,  is  one  of  the  most  certain  means  of  estabHsh- 
ing  the  time  sense ;  and  great  attention  ought  to  be  paid  to  it 
whenever  it  is  required  to  explain  an  obscure,  equivocal,  and  unde- 
termined point,  or  to  make  an  application  of  them  to  a  particular 
case.  As  soon  as  we  certainly  know  the  reason,  which  alone  has 
determined  the  will  of  him  who  speaks,  we  ought  to  interpret  his 
words,  and  to  apx)ly  them  in  a  manner  suitable  to  that  reason  alone." 


vattel's  uules.  129 

21.  "  Wc  ought  to  be  so  much  the  more  circumspect  in  this 
kind  of  interpretation,  as  frequently  several  motives  concur  to 
determine  the  will  of  him  who  speaks,  in  a  law,  or  promise.  It  is 
possible,  that  he  was  influenced  only  by  the  union  of  all  these 
motives,  or  each  taken  apart  might  have  been  sufficient  to  deter- 
mine him.  lu  the  Ih'st  case,  if  we  are  very  certain  that  the  legis- 
lature, or  powers  that  formed  the  laws  or  the  contract,  had  only 
in  consideration  one  of  many  motives  and  many  reasons  taken 
together,  the  intei-pretation  and  appUcation  ought  to  be  made  in 
a  manner  agi'eeable  to  all  these  united  reasons ;  and  none  of  them 
ought  to  be  neglected.  But  in  the  second  case,  when  it  is  evident 
that  each  of  the  reasons  that  have  concun-ed  to  determine  the 
will,  was  sufficient  to  jn-oduce  that  efibct,  so  that  the  author  of 
the  piece  would,  for  each  of  these  reasons  taken  separately,  have 
done  the  same,  as  for  them  altogether,  his  words  ought  to  be 
interpreted  and  applied  in  such  a  manner  as  they  may  agree  with 
these  reasons  separately  taken." 

22.  "When  the  sufficient,  and  only  reason  of  a  disposition, 
either  of  a  law  or  a  promise  is  very  certain,  and  well  known,  we 
understand  this  disposition  in  the  case  where  the  same  reason  is 
applicable,  though  it  is  not  comprehended  withm  the  signification 
of  the  terms.  This  is  what  is  called  extensive  intcrin-etatiou.  AYe 
ought  to  apply  rather  to  the  spirit,  than  to  the  letter." 

23.  "  To  violate  the  spirit  of  the  law,  by  pretending  to  respect 
the  letter,  is  a  fi'aud  no  less  criminal  than  an  open  violation  of  it. 
It  is  not  less  contrary  to  the  intention  of  the  legislature,  and  only 
shows  a  more  artful  and  more  dehberate  mahce." 

2-4.  "  When  a  case  arises  in  which  it  would  be  too  prejudicial 
to  any  one  to  take  a  law  or  promise  awarding  to  the  rigor  of  the 
terms,  a  restrictive  interpretation  is  also  then  used,  and  we  except 
the  case,  agreeably  to  the  intention  of  the  legislature,  or  of  him 
who  made  the  promise." 

25.  "  If  the  subject,  or  matter  treated  of,  will  not  allow  that 
the  terms  of  a  disposition  should  be  taken  in  their  fuU  extent,  we 
should  limit  the  sense  according  as  the  subject  requii-es." 

2G.  "  If  it  bo  certain  and  manifest  that  the  consideration  of  the 
present  state  of  things  was  one  of  the  reasons  wliich  occasioned 
the  x^i'omise ;  that  the  promise  has  been  made  in  consideration, 
17 


130  vattel's  eules. 

or  iu  consequence  of  that  state  of  things,  it  depends  on  the  pres- 
ervation of  things  in  the  same  state." 

27.  "  In  imforseen  cases,  -we  should  rather  follow  intention  than 
words,  and  interpret  the  act  as  the  party  himscK  would  have 
interpreted  it,  had  he  been  present,  or  conformably  to  what  he 
would  have  done  if  he  had  forseeu  the  thing  that  happened." 

28.  "  When  things  which  enter  into  the  reason  of  a  law  are 
considered,  not  as  actually  existing,  but  only  as  possible  ;  or 
when  the  fear  of  an  event,  is  the  reason  of  the  law,  we  can  only 
except  those  cases  where  it  is  shown  that  the  event  is  really 
impossible." 

29.  "  Everything  that  contains  a  penalty  is  odious  with  respect 
to  laws ;  in  case  of  doubt,  the  judge  ought  to  be  inclined  to  the 
merciful  side  ;  and  that  it  is  indisputably  better  to  suffer  a  guilty 
man  to  escaj^e,  than  to  punish  one  who  is  innocent." 

30.  "  What  tends  to  render  an  act  null  and  without  effect,  either 
in  the  whole  or  in  part,  and  consequently  everything  that  intro- 
duces any  change  already  agreed  upon  ;  is  odious." 

31.  "  When  the  subject  relates  to  things  favorable,  we  ought  to 
give  the  terms  all  the  extent  they  are  capable  of  in  common  use ; 
and  if  a  term  has  many  significations,  the  most  extensive  ought 
to  be  preferred ;  for  equity  ought  to  be  the  rule  of  all  men 
wherever  a  perfect  right  is  not  exactly  determined  and  known 
with  precision.  When  the  legislature  have  not  expressed  their 
wall  in  terms  that  are  precise  and  perfectly  determinable,  it  is  to 
be  presumed  that  they  desire  what  is  most  equitable." 

32.  "  In  things  favorable,  the  terms  of  art  ought  to  be  taken 
in  the  fullest  extent  they  are  capable  of ;  not  only  according  to 
common  use,  but  also  as  technical  terms,  if  he  who  speaks  under- 
stands the  art  as  to  wliich  those  terms  belong,  or  if  he  conducts 
himself  by  the  advice  of  men  who  understand  that  art." 

33.  "  But  we  ought  not  from  the  single  reason  that  a  thing  is 
favorable,  to  take  the  terms  in  an  improper  signification ;  this  is 
only  allowable  to  be  done,  to  avoid  absui'dity,  injustice,  or  the 
nulUty  of  the  act." 

34.  "  Though  a  thing  appears  favorable  when  viewed  in  one 
particular  hght,  yet  if  the  propriety  of  the  terms,  in  then-  full 


VATTEL'S  RULES.  131 

extent,  lead  to  absurdity  or  iujusticc,  tlieir  siguificatiou  ought  to 
be  limited  accordiug  to  the  rules  above  given." 

35.  "  If  there  flows  neither  absurdity  or  injustice  from  the 
strict  propriety  of  the  terms,  but  a  manifest  equity,  or  a  great 
common  utility  requires  a  restriction,  wo  ought  to  adhere  to  the 
most  limited  sense  which  the  proper  signification  can  admit,  even 
in  an  ufiair  that  ajjpears  favorable  in  its  own  natui'c." 

30.  "  In  all  cases,  where  what  is  only  permitted,  is  found  incom- 
patible with  Avhat  is  prescribed,  the  latter  has  the  advantage.^' 

37.  "  The  law  or  treaty  Avhicli  permits,  ought  to  yield  to  the 
law  or  treaty  which  forbids." 

38.  "  Everything  being  otherwise  equal,  the  law  or  treaty  which 
ordains,  yields  to  the  law  or  treaty  wdiich  forbids." 

39.  "  If  opposition  is  found  between  two  affirmative  laws  or 
treaties,  concluded  between  the  same  persons  or  States,  the  last 
date  is  to  be  preferred  to  the  more  ancient." 

40.  "  Of  two  laws  or  conventions,  in  all  other  things  equal,  we 
ought  to  prefer  that  which  is  the  least  general,  and  which 
approaches  nearest  to  the  affair  to  which  it  relates." 

41.  "  "What  will  suffer  no  delay,  ought  to  be  prefeiTed  to  what 
may  be  done  at  another  time." 

42.  "  When  two  duties  are  found  incompatible,  the  most  con- 
siderable, and  that  which  comprehends  the  higher  degree  of  hon- 
esty and  utihty,  merits  the  preference." 

43.  "  If  wc  cannot  acquit  ourselves  at  the  same  time  of  two 
things,  promised  to  the  same  person,  he  is  to  choose,  w^hich,  we 
ought  to  accomphsh." 

44.  "  Since  the  strongest  obligation  has  the  advantage  over  the 
weaker,  if  it  happen  that  a  treaty  confirmed  with  an  oath  comes 
in  opposition  to  a  treaty  that  is  not  sworn  to,  everything  else 
being  equal,  the  first  has  the  advantage." 

45.  "  All  other  things  being  equal,  Avliat  is  imposed  under  a 
penalt}',  has  the  advantage  of  what  is  not  enforced  by  one ;  and 
w  hat  bears  a  gi'cater  penalty,  over  what  bears  a  less." 

In  these  rales  as  copied,  wc  have  omitted  the  author's  illustra- 
tions and  examples.  We  have  also  intentionally  omitted  such  of 
his  rules  of  interpretation  as  are  not  in  harmony  with  the  spirit 
of  a  republican  form  of  government,  and  which  seem  to  be  in 


132  rUFFENDOEFS  EULES. 

conflict  %vitli  the  ndes  of  Story,  Kent,  and  other  distinguished 
American  commentators  upon  written  constitutions,  estabHshed 
bj  the  people.  He  adds  :  "  all  these  rules,  ought  to  be  combined 
tof^ether ;  and  the  interpretation  made  in  such  a  manner,  that  it 
may  be  accommodated  to  all,  so  far  as  they  are  apphcable  to  the 
case.  "Wlien  these  rules  appear  opposite,  they  reciprocally  bal- 
ance and  Hmit  each  other  according  to  their  strength  and  impor- 
tance, and  according  as  they  more  particularly  belong  to  the  case 
in  question." 

Puffendgef's  Eules. 

Puffendorf  has  also  given  in  his  treatise  on  the  law  of  nature 
and  of  nations,  a  set  of  rules  for  the  interpretation  of  laws,  (some 
of  which  he  copies  from  Grotius.)  A  few  of  which  that  have 
some  apphcation,  we  copy.     He  says  : 

"  The  true  end  and  design  of  interpretation,  is,  to  gather  the 
intent  fi'om  the  most  probable  signs,  which  are  of  two  sorts ; 
words  and  conjectures." 

"  As  for  ivorcls,  the  rule  is,— unless  there  be  reasonable  objec- 
tions against  it,  they  are  to  be  understood  in  their  proper  and 
most  Imown  signification  ;  not  so  much  according  to  grammar,  as 
to  the  general  use  of  them." 

"  As  for  terms  of  art,  which  are  above  the  reach  of  the  com- 
mon people,  the  rule  is,  that  they  be  taken  according  to  the  defi- 
nition of  the  learned  in  each  art." 

"  When  a  single  tvord  or  sentence  is  capable  of  several  signifi- 
cations; conjectures  are  necessary  to  find  out  the  true.  Both 
these  cases  rhetoricians  call  arnhiguous.  But  logicians  are  more 
nice,  who,  if  the  variety  of  significations  hes  in  a  u-ord,  call  it 
equivocal ;  if  in  a  sentence,  ambiguous." 

"  When  we  meet  with  a  seeming  repugnancy  in  the  terms,  con- 
jectures are  necessary  to  work  out  the  genuine  sense,  by  recon- 
cihng  it  if  possible,  to  those  terms  that  seem  to  be  repugnant. 
But  if  there  be  a  clear,  evident  rei^ugnancy,  the  latter  vacates  the 
former.  This  rule  appHes  to  the  making  of  laws,  wills,  and  con- 
tracts." 

"  The  effects  and  consequence,  do  very  often  point  out  the  gen- 
uine meaning  of  woids.     If  by  taking  them  hterally,  they  bear 


GROTIUS'   EULES.  133 

none,  or  a  very  absurd  signification,  to  avoid  such  an  inconven- 
ience, we  must  a  little  deviate  lV(nn  the  received  sense  of  them." 

"  It  gives  gi-eat  light  to  the  intei-pretation  of  obscure  passages, 
to  compare  them  ■with  others  that  have  some  affinity  with  them  ; 
or  to  compare  them  with  Avhat  goes  before  or  follows  in  the  con- 
text." 

"  Where  laws  are  really  repugnant,  the  judges  should  embrace 
that  which  is  clear,  in  preference  to  that  which  is  obscure." 

"  That  which  helj^s  us  most  in  the  discovery  of  the  true  mean- 
ing of  the  law,  is  the  rcdson  of  it,  or  the  cause  which  moved  the 
legislator  to  enact  it.  This  ought  not  to  be  confounded  with  the 
mind  of  the  law ;  for  that  is  nothing  but  the  genuine  moaning  of 
it ;  for  the  finding  out  of  which,  we  call  in  the  reason  of  it  to  om* 
assistance." 

"  In  promises  and  facts,  as  also  in  privileges,  some  things  are 
favorable,  some  odious,  and  others  of  a  mixed  natiu'c." 

GROTitrs'  KULES. 

The  following  rales  we  take  from  Grotius  : 

"  In  cases  that  are  not  odioxs,  words  are  to  be  understood  ac- 
cording  to  the  full  propriety  of  popular  use ;  and  if  in  popular 
use  there  be  several  significations  of  the  same  word,  the  largest 
is  to  be  taken ;  as  the  masculine  may  be  taken  for  the  common 
gender." 

"  In  a  matter  of  favor,  if  he  tliat  speaks  be  learned  in  the  law, 
or  speaks  by  the  advice  of  those  that  are,  his  words  are  to  be 
taken  in  the  most  comprehensive  signification,  so  as  not  only  to 
import  as  much  as  they  do  in  common  use,  but  to  include  that 
signification  also  which  is  used  among  lawyers." 

"  On  the  other  hand,  words  shall  be  taken  in  a  stricter  sense 
than  the  propriety  requires,  if  otherwise,  injustice  or  an  absurdity 
would  follow." 

"  If  it  be  not  absolutely  necessary  to  avoid  injustice,  to  take 
the  words  in  a  stricter  sense  than  their  propriety  demands,  yet  ii 
there  be  a  manifest  advantage  in  such  a  restriction,  we  ought  to 
stop  at  the  narrowest  limits  of  their  proper  signification,  unless 
circumstances  direct  otherwise." 


134  GROTIUS'   TlULES. 

"  In  an  odious  matter,  a  figurative  speech  may  be  admitted  to 
avoid  a  grievance." 

"  Sometimes  the  meaning  of  words  are  to  be  restrained,  and 
although  general  terms  be  made  use  of,  yet  they  ought  to  be  taken 
with  some  exception  or  limitation ;  either,  1st,  because  of  some 
original  defect  in  the  wiU  of  the  speaker ;  or  2d,  because  of  some 
accident  which  happens  inconsistent  with  his  design." 

"  1st.  An  original  defect  is  in  the  will.  First,  When  an  absur- 
dity proceeds  from  it,  for  no  man  in  his  wits  can  be  supposed  to 
will  absm-dities.  Secondly,  The  will  is  supposed  to  be  originally 
defective,  when  the  reason  ceases  which  alone  fully  and  effica- 
ciously moved  the  will." 

"  That  which  is  only  permitted,  gives  place  to  that  which  is 
commanded ;  for  permission  includes  a  liberty,  but  a  command 
canies  along  with  it  necessity  of  acting." 

"  That  which  ought  to  be  done  at  this  present  time,  is  prefera- 
ble to  that  which  may  be  done  at  any  other  time." 

"  An  affirmative  precept  gives  Avay  to  a  negative." 

"  In  covenants  and  lavv'S  that  are  in  other  respects  equal,  that 
which  is  particular  and  applicable  to  the  present  case,  takes  the 
place  of  that  which  is  general." 

"When  two  duties  happen  to  interfere  at  the  same  point  of 
time,  that  which  is  the  more  honest  and  profitable,  is  to  be  pre- 
fen-ed." 

"  When  two  covenants,  one  upon  oath,  the  other  not,  cannot 
both  be  performed  together,  the  former  ought  to  take  place  of  the 
latter,  unless  the  latter  was  added  as  an  exception  and  limitation 
to  the  other." 

"An  obhgation  imperfectly  mutual,  gives  place  to  one  that  is 
perfectly  mutual,  and  binding  on  both  sides." 

"  The  law  of  generosity,  gives  place  to  the  law  of  gi'atitude ; 
cateris  paribus y 

"  AVliere  laws  are  made  by  subordinate  powers ;  that  of  the 
inferior,  yields  to  that  of  the  superior  if  both  cannot  be  obeyed. 
Thus  we  ought  to  obey  God  rather  than  man." 

"  The  more  noble,  useful  or  necessary  the  matter  of  one  law  is 
than  that  of  another,  the  greater  weight  ought  the  law  to  have 
with  us." 


RUTHERFOKD's  liULES.  135 

We  have  also  selected  from  Eutheiford's  lectures  or  institutes, 
several  niles  of  interpretation,  omitting  such  as  arc  copied  from 
Grotius  and  Puffendorf,  and  such  as  relate  only  to  the  intei"preta- 
tion  of  contracts.     Ho  says  p.  lO-l. 

"  The  "svay  to  ascertain  our  claims  as  they  arise  fi'om  promises, 
contracts,  or  wills,  and  our  obligations  as  they  arise  from  instituted 
laws,  is  to  collect  the  meaning  and  intention  of  the  promisor,  con- 
tractor, testator,  or  lawmaker,  from  some  outward  signs  or  marks. 
The  collecting  of  such  intention,  from  such  signs  or  marks,  is 
called  interpretation." 

"  Words  are  the  common  signs  that  mankind  make  use  of  to 
declare  their  intention  to  one  another ;  and  when  the  words  of  a 
man  express  his  meaning  plainly,  distinctly,  and  perfectly,  we 
have  no  occasion  to  have  recourse  to  any  other  means  of  inter- 
pretation." 

"  Interpretation  consists  in  finding  out,  or  collecting,  the  inten- 
tion of  a  speaker  or  of  a  writer  either  from  his  words,  or  fi-om 
other  conjectures  or  from  both.  It  may  therefore  be  divided  into 
three  sorts,  according  to  the  different  means  that  it  makes  use  of 
for  obtaining  its  end.  These  three  sorts  of  interpretation  are 
literal,  rational  and  mixed." 

"  Where  we  collect  the  intention  from  the  clear  and  plain  words 
of  the  law,  or  of  the  writer,  this  is  literal  interpretation." 

"  Where  words  do  not  express  the  intention  perfectly,  but  either 
exceed  or  fall  short  of  it,  so  that  we  are  to  collect  it  fi'om  proba- 
ble or  rational  conjectures,  this  is  rational  interpretation." 

"Where  words,  though  they  do  express  the  intention  when 
rightly  understood,  are  in  themselves  of  doubtful  meaning,  and 
we  are  forced  to  have  recourse  to  like  conjectures  to  find  out  in 
what  sense  they  were  used,  this  is  mixed  interpretation ;  it  is 
partly  Hteral  and  partly  rational.  We  collect  the  intention  from 
the  words  indeed,  but  not  without  the  help  of  other  conjectures." 

"  Wliere  the  words  of  a  contract,  or  of  a  will,  or  of  a  law,  may 
be  so  strained  as  to  admit  of  a  sense,  which,  though  it  does  not 
hurt  the  grammar,  and  is  not  inconsistent  with  the  letter,  is  such 
a  sense  as  common  usage  will  not  justify  ;  we  can  scarcely  call 
these  words  ambicnious.     For  words  are  then  onlv  to  be  looked 


136  eutheefoed's  eules. 

upon  as  ambiguous,  when  tliey  will  admit  of  two  or  more  senses, 
either  of  which  is  equally  agi'eeable  to  common  usage." 

"  The  ambiguity  of  a  writing,  whether  it  is  a  law,  a  will  or  a 
contract,  depends  sometimes  upon  the  doubtful  sense  of  a  single 
word ;  sometimes  upon  the  doubtful  construction  of  a  sentence ; 
and  sometimes  upon  a  comparison  of  one  part  of  the  same  writing 
with  another,  or  of  the  writing  which  is  before  us  with  some 
other  writing  which  came  from  the  same  hand." 

"  When  words  or  expressions  are  of  doubtful  meaning,  the  first 
rule  in  mixed  interpretation  is,  to  give  them  such  a  sense  as  is 
agreeable  to  the  subject  matter,  of  which  the  writer  is  treating. 
For  we  are  sure  on  the  one  hand,  that  this  subject  matter  was  in 
his  mind,  and  can  on  the  other  hand,  have  no  reason  for  thinking 
that  he  intended  anything  which  is  different  from  it,  and  much 
less,  that  he  intended  anything  which  is  inconsistent  with  it." 

"  The  second  rule  in  mixed  interpretation  is,  to  give  all  doubt- 
ful words  or  expressions  that  sense  which  makes  them  produce 
some  efi'ect ;  this  effect,  must  in  general  be  a  reasonable  one  ;  and 
it  must  likewise,  be  the  same  that  the  lawmaker,  or  testator,  or 
contractor  intended  to  produce." 

"There  are  numberless  circumstances  of  laws,  wiUs  and  con- 
tracts, which  may  help  to  ascertain  their  meaning,  where  use  has 
been  made  of  ambiguous  words  or  expressions.  These  are  divi- 
ded into  two  sorts  ;  into  such  as  are  connected  with  the  instru- 
ment in  origin  only ;  and  such  as  are  connected  with  it  in  place 
as  well  as  origin.  To  these  two  sorts,  we  may  add  a  third  ;  for 
there  are  some  c'rcums'an^es  which  seem  to  be  connected  with  a 
law,  contract,  or  will,  rather  in  time,  than  either  in  origin,  or  in 
place." 

"  When  the  words  of  a  law,  contract  or  will  are  capable  of  two 
or  more  senses,  so  that  the  meaning  of  the  writer  is  left  doubtful ; 
what  has  been  spoken  or  written  by  the  same  lawmaker,  testa- 
tor or  contractor  upon  some  other  occasion,  is  a  circumstance  ol 
the  doubtful  wTiting." 

"  When  we  explain  a  doubtful  part  of  the  law,  Avill,  or  contract, 
by  the  help  of  some  other  part  of  it,  the  clause  which  we  make 
use  of  for  this  purpose,  is  a  circumstance  which  is  connected  with 
the  clause  to  be  explained  in  place,  as  well  as  in  origin ;  as  they 


DOMAT's  liUIJES.  137 

both  came  from  tlie  same  Land,  so  tliej  are  both  found  together 
in  the  same  "writing." 

"  Cotemporary  practice,  is  a  circumstance  wliich  is  connected 
with  a  hiw  in  time,  and  not  only  in  time  Ijut  in  phice  too ;  for  it 
consists  in  what  Avas  usually  done  in  the  place  where  the  law  was 
made,  at  or  near  the  time  of  making  it." 

Domat's  Kules. 

Domat's  rules  of  law  and  of  interpretation  are  appropriately 
selected  to  follow  those  of  the  preceding  authors.  We  do  not 
copy  them  in  full,  but  extract  such  portions  of  them,  as  will  be 
found  useful  in  this  connection,  from  Yol.  1,  Cushing's  edition, 
beginning  at  page  108.     He  says  : 

"Laws  ought  to  be  written  to  the  end  that  the  Avriting  may  fix 
the  sense  of  the  law,  and  determine  the  mind  to  conceive  a  just 
idea  of  that  Avhich  is  established  by  the  law,  and  that  it  be  not 
left  free  for  every  one  to  frame  the  law  as  he  himself  is  pleased  to 
understand  it.  We  may,  therefore,  distinguish  two  ideas,  which 
the  words  laio  and  rule  form  in  our  minds.  One,  is  the  idea  of 
what  we  concieve  to  be  just,  without  making  any  reflection 
on  the  terms  of  the  law ;  the  other  is  the  idea  of  the  terms  of  the 
law' ;  and  according  to  this  second  idea,  we  give  the  name  of  rule 
or  law,  to  the  expression  of  the  laicgivcr.'' 

"  Laws  are  of  two  sorts ;  one  is  of  those  Avhicli  flow  from  the 
law  of  natiu'e  and  equity,  and  the  other  is  of  such  as  derive  their 
origin  from  the  positive  law,  which  is  otherwise  called  human  and 
arbitrary  laws,  because  they  have  been  estabhshed  by  men."* 

"  The  rales  of  the  law  of  nature,  are  those  which  God  liimseH 
hath  established,  and  which  He  communicates  to  mankind  by  the 
hght  of  reason.  These  are  the  laws  which  have  in  ihem  a  justice 
that  cannot  be  changed ;  which  is  the  same  at  all  times,  and  in 
all  places  ;  and  whether  they  are  set  down  in  MTiting  or  not,  no 
human  authority  can  abolish  them,  or  make  any  alteration  in 
them." 

"  Ai-bitrary  rules,  are  all  those  that  have  been  established  by 
men,  and  which  are  such,  that  without  oftending  natui'al  equity, 
they  may  either  prescribe  one  thing,  or  a  thing  quite  different." 

"  All  laws  ought  either  to  be  known,  or  at  least  laid  open  to 
18 


138  domat's  rules. 

the  knowledge  of  all  the  world,  in  sncli  a  manner,  that  no  one  may 
with  impunity,  offend  against  them,  under  pretence  of  ignorance.* 
Thus,  the  natural  law  being  truth  that  is  unchangeable  ;  the 
knowledge  of  which  is  essential  to  reason,  nobody  can  pretend 
ignorance  of  it,  since  they  cannot  say  that  they  are  destitute  of 
common  reason,  which  makes  this  law  known.  But  arbitrary  laws 
have  not  their  effect  till  the  lawgiver  has  done  all  that  is  possible 
to  make  them  known ;  and  this  is  done,  by  the  ways  that  are 
commonly  practiced  for  the  publication  of  these  kinds  of  laws  ; 
and  after  they  are  promulged  in  due  from,  it  is  presumed  that 
they  are  known  to  every  body,  and  they  obhge  as  well  those  who 
pretend  ignorance  of  them,  as  those  who  know  them." 

"The  laws  of  nature  being  highly  just,  and  then-  authority 
always  the  same,  they  determine  equally  all  that  is  to  cpme,  and 
all  that  is  past  which  remains  undecided." 

"  Laws  restrain  and  punish  not  only  what  is  evidently  contrary 
to  the  sense  of  their  words,  but  likewise  everything  that  is  directly 
or  indirectly  against  their  intent,  although  it  seem  to  have  nothing 
contrary  to  the  terms  of  the  laws,  and  also  that  everything  that 
is  done  in  fraud  of  the  law,  and  to  elude  it." 

"  If  any  case  could  happen  that  were  not  regulated  by  some 
express  and  -WTitten  law,  it  would  have  for  a  law,  the  natural  prin- 
ciples of  equity  ;  which  is  the  universal  law  that  extends  to  every- 
thing." 

"  It  happens  in  two  sorts  of  cases,  that  it  is  necessary  to  inter- 
pret the  laws.  One  is  when  we  find  in  a  law  some  obscurity, 
ambiguity,  or  other  defect  of  expression ;  for  in  this  case,  it  is 
necessary  to  interpret  the  law  in  order  to  discover  its  true  mean- 
ing. And  this  kind  of  interpretation  is  limited  to  the  expression, 
that  it  may  be  known  what  the  law  says.  The  other  is,  when  it 
happens  that  the  sense  of  a  law,  how  clear  however  it  may  appear 
in  the  words,  would  lead  us  to  false  consequences,  and  to  deci- 
sions that  Avould  be  unjust,  if  the  laws  were  indifferently  apphed 
to  everything  that  is  contained  within  the  exj)ression.  For  in 
this  case,  the  palpable  injustice  that  would  follow  from  this  appar- 
ent sense,  obliges  us  to  discover  by  some  kind  of  interpretation, 
not  Avhat  the  law  says,  but  what  it  means ;  and  to  judge  by  its 


domat's  rules.  139 

meaning,  how  far  it  ouglit  to  bo  extended,  and  what  are  tho 
bounds  that  ought  to  be  set  to  its  sense." 

"  This  principle  of  interpreting  the  laws  by  equity,  docs  not 
only  respect  the  laws  of  nature,  but  roaches  likewise  to  arbitrary 
laws,  they  being  all  of  them  founded  upon  the  laws  of  nature.  If 
they  are  natural  laws,  we  arc  to  reconcile  them  by  the  extent  and 
limits  of  their  tiiith,  if  arbitrary,  we  are  to  fix  their  equity  by 
the  intention  of  the  lawgiver." 

"  All  rules,  whether  natural  or  arbitrary,  have  their  use  ;  such 
as  is  assigned  to  every  one  of  them  by  universal  justice,  which  is 
the  spirit  of  them  all.  Thus  the  application  of  laws  is  to  bo 
made,  by  discerning  what  it  is  that  this  spirit  demands ;  which,  in 
natural  law,  is  cquifij;  in  arbitrary  laws,  the  intention  of  the  law 
giver.  It  is  in  this  discerning  faculty,  that  the  science  of  tho 
law  does  chiefly  consist." 

"  If  a  rule  of  natural  justice  being  applied  to  a  case  that  it 
seems  to  embrace,  shows  a  result  contrary  to  equity,  we  are  bound 
to  conclude  that  the  rule  has  been  improperly  apphed,  and  that 
the  case  should  fall  under  some  other  law." 

"  If  an  arbitrary,  or  positive  rule,  is  applied  to  a  case  which  it 
apparently  embraces,  and  the  result  is  contrary  to  the  intent  of 
the  legislator,  the  rule  should  not  be  apphed  to  the  case. 

"  But  we  must  not  consider  as  unjust  and  repugnant  to  equity, 
or  the  legislators  intention,  those  decisions  which  appear  rigorous 
and  severe,  when  it  is  evident  that  rigor  and  severity,  is  the 
essential  characteristic  of  the  law  in  question ;  and  that  it  could 
not  be  mitigated  without  impairing  its  effect ;  as  for  example,  the 
law  in  regard  to  the  formahties  prescribed  relating  to  the  execu- 
tion of  wills  ;  the  severity  and  arbitrary  character  of  the  rule 
which  annuls  all  wills  ■olicre  these  formalities  are  neglected,  is,  in 
those  cases  an  indispensable  part  of  the  law." 

"  If  however,  the  severity  of  the  law  is  not  a  necessary  and 
indispensable  part  of  it,  but  can  be  earned  into  effect  by  a  milder 
interpretation  and  one  more  conformable  to  equity  and  natural 
justice ;  then  this  is  to  be  preferred  to  the  severe  and  strict  con- 
struction." 

"  It  follows  from  these  rules,  that  the  rule  of  interpretion  is  not 
fixed  and  invariable ;  that  sometimes  strictness,  and  sometimes  a 


1-10  domat's  rules. 

milder  and  nioie  equitable  interpretation  is  to  be  followed.  Eigor 
becomes  injustice  when  tlie  law  will  bear  an  equitable  interpreta- 
tion, and  rigor  should  be  practiced  when  an  equitable  construc- 
tion would  defeat  the  law.  This  rigor  or  strictness  is  either  an 
unjust  and  odious  severity,  contrary  to  the  spirit  of  the  law,  or, 
it  furnishes  a  just  but  inflexible  rule.  These  t'N\'o  ideas  are  never 
to  be  confounded ;  and  the  strict,  or  equitable  construction  ought 
to  be  adhered  to  according  to  the  i*ules  here  given." 

"  It  is  never  a  matter  of  indifference  whether  we  apply  a  strict 
or  a  hberal  constniction.  In  each  case  we  are  to  enquire  whether 
the  rule  in  question  calls  for  a  strict  interpretation,  or  will  bear 
a  hberal  one  ;  and  then  decide  accordingly." 

"  Although  the  strictness  of  law  appears  at  first  sight  opposed 
to  equity,  it  is  nevertheless  true  that  where  it  ought  to  be  apphed, 
it  is  only  on  account  of  its  inherent  justice.  "W  hat  is  equitable 
cannot  be  contrary  to  justice ;  and  so  what  is  just  cannot  be  con- 
trary to  equity." 

*'  The  obscurities,  ambiguities,  and  other  defects  of  expression 
which  may  render  the  meaning  of  a  law  doubtful,  and  all  other 
difficulties  in  its  construction  and  apphcation  should  be  resolved 
by  the  natural  sense  of  the  language,  according  to  the  nature  of 
the  subject,  so  as  if  possible  at  once  to  conform  to  the  intent  of 
the  legislator  and  to  equity.  This  is  to  be  arrived  at  by  the  dif- 
ferent consideration  of  the  nature  of  the  law,  its  object,  its  con- 
nection with  other  laws,  the  exceptions  to  which  it  may  be  sub- 
ject, and  other  similar  considerations." 

"  To  arrive  at  the  meaning  of  a  law,  we  are  to  weigh  its  terms 
and  examine  its  preamble,  if  there  be  one,  in  order  to  judge  of 
its  provisions  by  its  object  and  the  whole  context,  and  not  to 
limit  its  interpretation  to  what  would  appear  different  from  its 
intention,  either  in  a  single  portion  of  the  law  or  in  a  single 
defective  expression.  We  must  prefer  the  evident  meaning  of 
the  whole  law,  to  the  inconsistent  meaning  of  a  defective  expres- 
sion." 

"  If  in  any  law  we  find  the  omission  of  something  essential  to 
it,  or  which  is  a  necessary  result  of  its  provisions,  and  requisite 
to  give  the  law  its  full  effect,  Ave  may  supply  what  is  wanting  bur 


domat's  rules.  14J 

not  expressed,  and  extend  the  law  to  wliat  it  was  manifestly 
intended  to  embrace,  but  in  its  terms  does  not  include." 

"  If  the  language  of  a  law  clearly  expresses  its  meaning  and 
intention,  that  intention  must  be  earned  out ;  but  if  the  tuie 
sense  of  the  law  cannot  be  arrived  at  bj  the  interpretation  which 
may  be  made  according  to  the  rules  here  given,  or  the  meaning 
be  clear,  and  inconvenience  appear  to  result,  then  we  must  haVe 
recourse  to  the  sovereign  to  interpret,  to  declare,  or  to  modify 
the  law." 

"  If  the  i^rovisions  of  a  law  arc  clear,  but  its  object  not  under- 
stood, and  in  its  application  inconveniences  ajipear  to  result,  we 
are  bound  to  presume  tliat  the  law  is  useful  and  just ;  and  its 
meaning  and  authority  are  to  be  preferred  to  mere  abstract  rea- 
soning. Otherwise,  many  useful  and  well  contrived  rules  would 
be  overtimied  on  grounds  of  alleged  equity,  or  ingenious  argu- 
ment." 

"  Laws  A\hich  favor  what  public  utility, humanit}', religion,  free- 
dom of  intercourse,  and  other  similar  interests  regard  favorably, 
as  well  as  those  intended  to  favor  particular  individuals,  ought  to 
be  interpreted  with  all  the  liberalit}'  to  whicli  these  interests  are 
justly  entitled,  in  an  equitable  point  of  view,  and  ought  not  to  be 
interpreted  severely,  nor  be  applied  in  a  manner  calculated  to 
prejudice  the  persons  intended  to  be  fayored." 

"Laws. which  restrain  natural  liberty,  as  those  which  prohibit 
what  is  not  of  itself  illicit,  or  which  derogate  otherwise  from 
common  right ;  laws  fixing  the  punishment  of  crimes  and  offences, 
or  penalties  in  matters  of  a  civil  natui'o  which  prescribe  formal- 
ities that  seem  severe  ;  those  wliich  permit  parents  to  disinherit 
childi-en  ;  and  others  of  a  similar  character ;  ought  not  to  be  so 
interpreted  as  to  extend  their  provisions  to  cases  which  they  do 
not  embrace ;  and,  on  the  contrary,  they  should  receive  all  prac- 
tical mitigation  of  equity  and  humanity." 

"  If  any  law  or  custom  is  established  for  particlar  reasons  con- 
trary to  other  rules  of  common  right,  it  ought  not  to  be  applied 
(.'xcept  to  those  cases  for  which  it  is  expressly  intended. 

"  The  gi-ants  and  gifts  of  sovereigns  are  to  be  favorably  regarded, 
and  to  have  that  extension  to  which  they  are  entitled  from  the 
natural  presumption   of  princely  liberaHty,  provided  however. 


142  domat's  rules. 

that  tliey  are  not  to  bo  so  liberally  construed  as  to  injure  other 
individuals." 

"  If  the  doubts  or  difficulties  in  regard  to  the  interpretation  of 
a  law  or  a  custom  are  solved  by  an  old  usage  which  has  fixed  the 
meanings,  and  which  is  supported  by  a  imiform  series  of  adjudi- 
cations, we  should  adhere  to  the  usage,  which  is  the  best  inter- 
pr6ter  of  laws." 

"  In  case  any  provinces  or  districts  are  without  certain  rules  to 
decide  difficulties  in  regard  to  matters  which  are  there  governed 
by  usage ;  if  these  difficulties  are  not  determined  by  natural  jus- 
tice, or  by  ■VNTitten  law,  but  dej)end  on  custom  and  usage,  we 
ought  to  adopt  the  principles  which  result  from  the  customs  and 
usages  of  the  province  or  district," 

"  AU  laws  necessarily  bear  with  them  aU  the  powers  or  inci- 
dents necessary  to  fully  carry  out  their  intention.  Thus,  as  the 
law  permits  boys  to  contract  marriage  at  the  age  of  fourteen,  and 
girls  at  the  age  of  twelve,  it  necessarily  results  from  this  laAV  that 
those  who  marry,  can,  although  infants,  and  not  of  full  age,  bind 
themselves  in  regard  to  the  settlement,  community  of  goods  and 
the  like." 

"  In  laws  which  confer  power,  the  greater  authority  implies  the 
less.  Thus  those  wdio  possess  their  property  have  with  still 
gi-eater  reason  the  right  to  sell  it." 

"  In  laws  which  'prohibit  acts,  the  lesser  prohibition  includes 
the  greater.  Those  who  are  forbidden  to  manage  or  control  their 
property,  with  stronger  reason  cannot  alienate  it." 

"  The  implications  arising  from  the  two  preceding  sections,  are 
to  be  restricted  to  subjects  of  the  same  nature  as  those  to  W'liich 
the  law  applies  according  to  those  rules.  Thus,  the  hberty  that 
a  minor  adult  enjoys,  to  make  a  donatio  causa  mortis,  will  not  be 
extended  so  as  to  sustain  a  gift  inter  vivos.'' 

"  If  a  law  gi-ants  an  amnesty  or  pardon  for  past  offences,  it  is 
to  be  understood  as  prohibiting  similar  acts  in  future." 

"  When  a  right  comes  to  a  person  by  reason  of  a  law,  this 
right  is  equally  vested  in  him,  whether  he  knows  the  fact  or  not ; 
as  a  son  is  heir  to  his  father,  and  owns  the  estate  though  he  be 
ignorant  of  his  father's  death,  and  also  ignorant  of  the  law  of 
succession." 


AMERICAN  RULES.  143 

"  Persons  competent  by  law  to  act  upon  their  rights,  may  waive 
the  benefit  or  privilege  created  by  law  in  their  favor.  But  they 
cannot  by  renunciation  or  waiver  effect  the  rights  of  thud  per- 
sons, nor  can  they  waive  or  renounce  in  cases  contrary  to  equity, 
good  morals,  or  to  any  other  law." 

"  No  person  by  contract,  testament,  or  otherwise,  can  hinder 
the  effect  of  the  hiw.  Thus  a  testator  cannot  dispose  of  his 
estate  to  be  controled  or  managed  contrary  to  law." 

"  It  is  necessary  to  possess  an  ample  knowledge  of  the  rules  of 
interpretation  of  lav/s  in  order  to  make  the  proper  apphcation  of 
them." 

American  Eules. 
The  following  few  rules  and  maxims  of  intori:)retation,  may  be 
regarded  as  general  rules  in  the  American  standards.  They  have 
been  selected  fi'om  approved  American  authority,  and  this  includes 
such  of  the  English  rules  as  have  been  adopted  by  our  courts. 
They'also  include  the  rules  of  interpreting  State  laws  by  the 
national  courts. 

1.  The  interpretation  by  the  United  States  courts  within  the 
jurisdiction  of  a  State,  of  a  local  law,  becomes  a  part  of  that 
law  ;  as  much  so,  as  if  it  was  incorporated  in  the  body  of  it,  by 
the  legislature.  If  different  interpretations  are  given  in  different 
States  to  a  similar  law,  that  law,  in  effect,  becomes  by  interpret- 
ation, so  far  as  it  is  a  rule  for  action  by  the  federal  courts,  a  dif- 
ferent law  in  one  State,  from  what  it  is  in  the  other.a 

2.  It  is  not  permitted  to  interpret  what  has  no  need  of  inter- 
pretation. When  an  act  is  expressed  in  clear  and  precise  terms ; 
when  the  sense  is  manifest  and  leads  to  nothing  absui'd,  there 
can  be  no  reason  not  to  adopt  the  sense  which  it  naturally  pre- 
sents. To  go  elsewhere  in  search  of  conjectures  in  order  to 
restrain  or  extinguish  it,  is  to  elude  it.h 

3.  The  popular,  or  received  import  of  words,  furnishes  the  gen- 
eral rule  for  the  interpretation  of  statutes.c 

a  Christy  v.  Pridgion,  4  "Wall.  19G. 

h  Jackson  v.  Lewis,  17  John.  475;  People  r.  N.  Y.  Cent.  E.  K.  Co.  13  N.  Y.  It. 
78;  Watcrford  and  "WTiitehall  Turnpike  Co.  9  Barb.  IGl;  Vattcl,  B.  2  ch.  17,  '^ 
2(53;  United  States  v,  Fisher,  2  Cranch,  358. 

c  Maillard  v.  Lawrence,  IG  How.  U.  S.  K.  251. 


144  AMEEICAN  RULES.  • 

■i.  It  is  the  duty  of  courts  so  to  construe  statutes  as  to  meet 
the  mischief  and  to  advance  the  remedy,  and  not  to  violate  fund- 
amental principles.a 

5.  Where  there  is  a  discrepancy  or  disagreement  between  two 
statutes,  such  interpretation  should  be  given,  that  both  may,  if 
possible,  stand  together.6 

G.  Statutes  must  be  interpreted  according  to  the  intent  and 
meaning,  and  not  always  according  to  the  Icttcr.c 

7.  The  intention  of  the  legislature  may  be  found  from  the  act 
itself ;  fi'om  other  acts  in  fari  materia ;  and  sometimes  from  the 
cause  or  necessity  of  the  statute,  and  wherever  the  intent  can  be 
discovered,  it  should  be  followed  with  reason  and  discretion, 
though  such  construction  seem  contrary  to  the  letter  of  the  stat- 
ute ;  this  is  the  rule  where  the  words  of  the  statute  are  obscure.cZ 

8.  A  thing  within  the  intention,  is  v/ithin  the  statute,  though  not 
within  the  letter ;  and  a  thing  within  the  letter,  is  not  within  the 
statute,  unless  witliin  the  intention,  e 

9.  Statutes  should  be  interpreted  according  to  the  most  natu- 
ral and  obvious  import  of  their  language,  without  resorting  to 
subtle  or  forced  construction  for  the  piu-pose  either  of  limiting  or 
extending  their  oj)eration.  Courts  cannot  correct  supposed  errors, 
omissions  or  excesses,  of  the  legislature./ 

10.  The  ofi&ce  of  interpretation  is  to  bring  the  sense  out  of  the 
words  used,  and  not  to  bring  a  sense  into  them,  g 

11.  The  spirit  of  a  law  may  be  referred  to  in  order  to  interpret 
words  admitting  of  tw^o  meanings ;  but  not  to  extend  a  law  to  a 
case  not  within  its  fair  meaning./i 

12.  In  the  construction  of  a  statute,  every  part  of  it  must  be 
viewed  in  connection  with  the  whole,  so  as  to  make  all  its  parts 

a  Hart  v.  Cleis,  8  John.  E.  44. 

h  McCartee  v.  Orphan  Asylum  Society,  9  Cow.  K.  437. 

c  People  V.  N.  Y.  Cent.  K.  K.  Co.  13  N.  Y.'E.  81;  Leavittv.  Blatchford,  5  Barb. 
13,  Plowd.  205;  Holmes  v.  Carley,  31  N.  Y.  E.  280,  290;  Brown  v.  Barry,  3  Ball. 
3G5,  1  Pet.  4G,  2  id.  C27. 

d  1  Kent  Com.  4G2,  Bac.  Abr.  Lit.  Statute  J.  5,  10. 

e  People  V.  Utica  Ins.  Co.  15  John.  380-1;  Jackson  v.  Collins,  3  Cow.  80,  au<? 
authorities  sujjra. 

/Waller  v.  Harris,  20  Wend.SGl,  5G2  ;  McCluskey  v.  Cromwill,  11  N.  Y.  COl-2. 

g  Lieber's  Polit.  Hermeneuties,  87  ;  11  N.  Y.  E.  supra  601-2. 

h  Bcebe  v.  Griffin^,  14  N.  Y.  E.  244. 


AMERICAN  RULES.  145 

haiuioiiizc  if  practicable,  and  give  a  sensible  and  intelligent  effect 

to  each.     It  is  not  to  be  presumed  that  the  legislature  intended 

any  part  of  a  statute  to  be  without  meanmg.  a 

llj.  Every  legislative  act  must  have  reasonable  constmction.  h 
1-1.  That  which  is  implied  in  a  statute,  is  as  ranch  a  part  of  it 

as  what  is  expressed.  <■ 

15.  The  presumption  must  ahvajs  be  in  favor  of  the  vahdity  of 
laws,  unless  the  contrary  is  clearly  demonstrated,  d 

16.  Statutes  are  to  be  constraed  to  operate  prospectively,  unless 
a  retrospective  effect  be  clearly  intended,  c 

17.  All  statutes  in  pa>-4  materia  arc  to  be  read  and  construed 
together,  as  if  they  formed  parts  of  the  same  statute,  and  were 
enacted  fit  the  same  time./ 

18.  Statutes  arc  to  be  interpreted  with  reference  to  the  princi- 
ples of  the  common  law  in  force  at  the  time  of  their  passage,  ex- 
cept when  the  statute  itself,  or  the  courts  have  otherwise  deter- 
mined, and  this  rule  is  the  same  in  courts  of  equity  as  of  law.  (j 

19.  Whether  courts  are  interpreting  an  agreement  between  par- 
ties, a  statute,  or  a  constitution,  the  thing  to  seek,  is,  tlic  tJiougJd 
ichirh  it  cxjyresscs.  To  ascertain  this,  the  first  resort  in  aU  cases 
is  to  the  natural  signification  of  the  words  employed,  in  the  order 
and  grammatical  arrangement  in  which  they  stand.  If  thus 
regarded,  the  words  embody  a  definite  meaning,  which  involves 
no  absurdity,  and  no  contradiction  between  different  parts  of  the 
same  writing ;  then  that  meaning  apparent  upon  the  face  of  the 
instrament,  is  the  one  which  aJo:^  we  are  at  hberty  to  say  was 
intended  to  be  conveyed.    In  such  case  there  is  no  room  for  con- 

a  Ogden  v.  Strong,  2  Paiuc  E,  584  ;  1  Kent  Com.  1G2  ;  People  v.  Draper,  15  X. 
Y.  532. 

h  Famurn  v-  Black  Comal.  1  Sum.  4G. 

c  U.  S.  V.  Babbitt,  1  Black.  Gl ;  Gelpecke  v.  City  of  Dubuque,  1  Wall.  221. 

d  Cooper  v.  Telfair,  4  Cranch.  1G7. 

e  Jackson  v.  Van  Zandt,  12  Johns.  17G  ;  Hackley  v.  Spragiie,  10  "Wend.  IIG  , 
Tcople  V.  Supervisors  of  Columbia,  id.  3G5  ;  Snyder  v.  Snyder,  3  Barb.  621  ;  Har- 
vey V.  Tyler,  2  Wall.  3i7  ;  Blancbard  v.  Sprague,  3  Sum.  535. 

/I  Kent  Com.  4G3  ;  Smith's  Com.  §  039  ;  9  Barb.  IGl  ;  Rogers  v.Bradshaw,  20 
John,  735  ;  ilcCartee  v.  Orphan  Asylum,  9  Coav-.  437  ;  Eexford  v.  Knight,  15 
Barb.  627. 

g  nice  v.  M.  &,  N.  W.  Bailroad  Co.  1  Blatch-  359  ;  Talbot  v.  Simpson,  Beters  C 
C.  E.  188  ;  Van  Home  v.  Dorrance,'  2  Dallas,  316  ;  How  v.  Beckham,  G  How.  Pr 
E.  229. 

10 


146  AMERICAN  r.ULES. 

struction.  That  -svliicli  the  words  declare,  is  the  meanmg  of  the 
iustrument ;  and  neither  the  courts  nor  the  legislature  have  a 
right  to  add  to,  or  take  away  fi'om  that  meaning.a 

20.  In  the  enactment  of  statutes,  the  rule  of  interpretation  is, 
in  respect  to  the  intention  of  the  legislature,  that  where  the  lan- 
guage is  exphcit,  the  courts  are  bound  to  seek  for  the  intention  in 
the  words  of  the  act  itself,  and  they  are  not  at  liberty  to  suppose 
or  to  hold,  that  the  legislature  intended  anything  different  fi'om 
what  their  language  imports.?; 

21.  Statutes,  by  the  authority  of  which  a  citizen  may  be 
deprived  of  his  estate,  must  have  the  strictest  construction,  and 
the  power  conferred  must  be  executed  precisely  as  it  is  given,  and 
any  departure  from  it  will  vitiate  the  proceeding,  and  this  is  so 
whether  it  be  in  the  exercise  of  a  public  or  private  authority, 
whether  it  be  ministerial  or  judicial.c 

a  Xewell  v.  the  People,  7  N.  Y.  99;  McCluchey  v.  Cromwell,  11  N.  Y.  593. 
h  Superrisors  of  Niagara  v.  tlio  People,  7  Hill,  513. 

c  Sherwood  v.  Eeacle,  7  Hill  431;  Striker  v.  Kelly,  2  Denio  323;  Sheup  v.  Spier, 
4  Hill  76;  Downing  v.  Euger,  21  Wend.  178;  Powell  v.  Tuttle,  3  N.  Y.  396. 


QDALITIES  AND  INCIDENTS.  147 


CIIAPTEU  VL 


OF  THE  EXCErTIONS  TO  GENERAL  RULES  OF  CONSTRUCTION,  AND 
THE  MANNER  OF  PLEADING  OR  TAKING  ADVANTAGE  OF  PARTIC- 
ULAR STATUTES.  REPEAL  OF  STATUTES  AND  ITS  EFFECTS,  AND 
ACCIDENTS. 

The  rules  and  maxims  in  the  preceding  chapter  as  to  the  gen- 
eral interpretation  of  statutes,  as  will  be  seen,  have  been  selected 
from  the  books  of  tlie  most  approved  authors,  and  the  adjudica- 
tions of  courts  and  jurists  upon  that  branch  of  law.  They 
embrace  all  that  can  be  regarded  as  ncedfid  on  that  subject.  The 
law  in  regard  to  the  interpretation  of  contracts,  wills,  covenants, 
and  other  facts,  by  the  writers  on  those  subjects,  is  not  brought 
within  the  scope  of  this  treatise,  except  in  so  far  as  their  inter- 
pretation is  identical  with  that  of  statutes.  The  rules  of  con- 
struction applicable  to  special  cases,  and  to  distinct  parts  of  stat- 
utes with  judicial  exposition,  selected  from  American  and  other 
authority  as  to  the  effect  of  the  title,  preamble,  clauses,  and  pro- 
visos in  statutes ;  with  the  meaning  of  particular  words  and 
expressions  therein,  will  be  found  in  a  subsequent  chapter ;  as 
will  also  the  interpretation  of  written  constitutions  by  the  sound- 
est of  American  wTiters. 

The  nature,  parts,  and  properties  of  a  statute  having  been 
thus  considered,  the  next  inqury  is,  what  are  its  accidents ;  how 
can  it  be  pleaded,  or  in  Avhat  way  taken  advantage  of  ? 

In  an  action  founded  on  a  statute,  the  plaintiff  ought  a  to  aver 
every  fact  necessary  to  inform  the  court  that  his  case  is  within 
the  statute,  concluding  in  general  \\\i\i  an  express  reference  to  the 
statute.  A  pubhc  statute  it  is  never  advisable  to  set  forth,  since 
by  reciting  the  act  and  concluding  contra formam  statuti,  the  risk 
of  a  fatal  variance  is  incurred. 

If  part  of  a  statute  be  public,  and  the  residue  thereof  private, 
there  is  no  necessity  that  the  part  which  is  public  should  bo 
recited  in  plcading.6 

a  And.  G2;  Lut.  1089. 

h  10  Rep.  57,  the  Chancellor  of  Oxford's  case,  Hob.  227,  Sid.  24. 


148  MANNER  OF  TLEiVDING  STATUTES. 

If  a  private  statute  be  pleaded,  it  must  be  recited,  and  md  tiel 
record  may  be  replied ;  but  if  the  exemplification  of  a  private 
statute  under  the  great  seal  be  pleaded,  mil  tiel  record  cannot  be 
rei^lied. « ^ 

In  pleading  a  statute  it  is  not  necessary  to  recite  the  title  or 
the  preamble.  The  title,  said  Lord  Holt,  is  no  more  a  jjart  of 
the  law  than  a  title  of  a  book  is  part  of  the  book,  and  there  is, 
for  that  reason,  no  necessity  to  recite  it ;  but  if  a  party  do  take 
upon  him  to  recite  the  title  of  a  statute,  he  thereby  ties  himself 
to  an  act  so  entitled,  and  if  he  cannot  produce  it,  he  is  gone.?* 

We  have  said  in  a  previous  chapter  that  certain  statutes,  such 
as  the  statute  of  limitations,  and  the  statutes  to  prevent  usury, 
though  x^ublic  statutes,  are  required  to  be  set  up  in  pleading  by  the 
party  who  desires  to  iutei-posc  them  as  defences,  and  heretofore  in 
practice,  the  courts  have  been  disposed  to  look  upon  such  defences 
with  disfavor,  especially  in  cases  of  latches,  on  the  ground  that 
such  defences  are  inequitable  and  immoral.  This  is,  with  more 
modern  views,  believed  to  be  a  mistaken  pohcy  for  the  judiciary. 
The  pohcy  of  the  government,  is  for  the  legislature  to  direct ;  that  of 
the  duty  of  the  judiciary  is,  to  give  full  effect  to  the  legislative  will ; 
and  every  effort  by  them  to  throw  discredit  on  statutory  provis- " 
ions  as  unjust,  as  inexpedient,  and  is  but  to  arrogate  to  themselves 
a  censorship  over  the  law-making  power  which  our  constitutions 
have  nowhere  entrusted  to  them.  "  All  laws  emanate  fi'om  the 
same  supreme  power ;  and  while  they  remain  on  the  statute  books 
are  all  entitled  to  equal  respect  and  obedience."  a" 

a  The  Prince's  case,  8  Kep.  28,  Hale's  H.  C.  L.  IG.  h  (S  Mod.  62. 

c  SedgwiclL  on  Const.  Law,  109. 

Note  1.— The  objection,  that  a  statute  was  not  constitutionally  passed,  in  order 
to  be  available,  must  be  set  up  in  an  answer  by  way  ot  defence.  Darlington  v. 
Mayor,  &c.,  of  New  York,  31  N.  Y.  1G4,  2  Robertson  274. 

Note  2.— Statutes  of  limitation  are  now  regarded  favorably  in  all  courts  of  jus- 
tice. They  are  called  "  statutes  of  repose."  Usually  they  are  founded  in  a  wise 
and  salutai-y  policy,  and  promote  the  ends  of  justice.  Lessee  of  Parish  v.  Perris, 
2  Black.  COG  ;  Tolson  v.  Kage,  2  Brod.  &  Bing.  217  ;  Lewis  v.  Marshall,  5  Peters, 
470.  They  are  entitled  to  the  same  respect  as  other  statutes  and  ought  not  to 
receive  unfavorable  construction  or  to  bo  explained  away.  Bell  v.  Morrison,  1 
Peters,  3G0  ;  Willisou  v.  Watkins,  3  Pet.  54  ;  McCleny  v.  Silliman,  id.  270.  They 
rest  upon  sound  policy  and  tend  to  the  peace  and  welfare  of  society.  They  are 
often  a  very  meritorious  defence.  Tracy  v.  Suydam,  30  Barb.  117.  No  one  who 
has  reflected  upon  the  subject,  and  whose  observation  and  experience  qualify  him 
to  judge,  but  will  sanction  and  applaud  the  wisdom  and  policy  of  a  statute,  the 


MANNER  OF  PLEADING  STATL'TES.  149 

A  misrccital  of  the  day  on  which  the  parHament  was  hoi  Jen,  or 
of  the  session,  (as  of  the  29th  of  Eliz.,  when  tlie  session  commen- 
ced the  28th  Ehz.,)  a  or  of  the  ])lace  of  niakiiij^'  the  statute,  or  a 
repugnancy  in  reciting  tlie  day  of  its  making,  will  be  fatal ;  so,  if 
any  material  part  be  omitted  en-  misreeited.  h  But  tritliug  varia- 
ti(ms  which  do  not  alter  the  sense,  of  the  material  parts  of  the 
statute  would  not,  it  is  apprehended,  now,  be  considered  fatal.  ^■ 
It  is  no  fault  in  the  recital  of  a  statute  to  omit  altogether  the  day 
on  which  the  parliament  was  liolden  ;  for  the  judges  are  bound  to 
take  notice  of  the  commencement  of  a  session,  and  it  is  a  safer 
course  to  omit  it,  to  avoid  the  risk  of  a  misreeital.  If  a  mistake 
be  made  in  reciting  even  a  material  part  of  a  jmljlic  statute,  the 
defect,  it  seems,  will  not  be  fatal,  uidess  the  indictment  conclude 
"  against  the  form  of  the  said  statute  ;"r/  for  if  it  conclude^"  against 
the  form  of  the  statute  in  such  case  made  and  provided,"  the  mis- 
recital  will  be  rejected  as  surplusage,  and  the  court  will  give 
judgment  upon  that  statute  which  wan-ants  it.  But  where  an 
indictment  is  founded  upon  a  private  statute,  such  a  defect 
will  not  be  cured  by  a  general  conclusion,  e  In  civd  actions,  mis- 
recitals  of  a  private  statute  can  only  be  taken  advantage  of  by  ])lea 
of  nnl  tiel  record,  or,  in  assumpsit,  under  the  general  issue  ;/'  while 
the  time  or  place  of  holding  the  parliament  being  misstated,  is 
gi-ound  of  demurrcr.7  In  pleading  upon  statutes,  it  has  already 
been  stated,  that  where  there  is  an  exception  in  the  enacting 
clause,  the  plaintiff  must  show  that  the  defendant  is  not  withm 
the  exception;  but  if  there  be  an  exception  in  a  subsequent 
clause,  that  is  matter  of  defence,  and  the  other  party  must  show 
it,  to  exempt  himself  from   the  penalty.  U    AVhen   a  temporary 

a  2  M.  &  S.  121 ;  2  Biugliam,  255. 

h  Lord  Eaym.  382  ;  Cro.  Eliz.  18G  ;  Cro.  Car.  522. 

c  2  Haw,  C.  25,  s.  109.  d  Lord  Kaym.  210  ;  Liitw.  1-10, 

e2  Haw.  c.  25,  s.  101  ;  2  Hale,  173.  /Lord  Eaym,  381. 

g  Cow.  171.  h  1  Term.  Eep.  1-11. 

object  and  obvious  teudeucy  of  wLicb  is  to  promote  the  peace  and  good  order  of 
society,  by  quieting  possessions  and  estates,  and  avoiding  litigation.  La  From- 
bois  V.  Jackson,  8  Cow.  G15,  GIG,  per  Yiele,  Senator. 

"We  are  not  warranted  in  applying  a  diflerent  rule  to  the  defence  of  usunj,  from 
that  which  we  would  hold  applicable  in  other  cases.  It  is  a  defence  allowed  and 
provided  by  law.  The  defendant  (in  that  case)  did  not  claim  any  indulgence 
from  the  court,  but  simply  asked  for  the  indulgence  of  those  rules  which  the  leg- 
islature has  provided  for  all  cases  indiscriminately,  whether  the  party  invoking 
(heir  exercise  was  seeking  to  visit  his  adversary  with  a  forfeiture  or  not.  The 
law  has  not  made  any  distinction  between  such  defences,  and  those  where  no  for 
foiturc  is  involved  ;  and  the  court  can  make  none.  If  the  sense  of  the  legislature 
is  plainly  expressed,  the  court  has  no  judgment  to  pass  upon  the  policy  of  its  pro- 
visions. Catlin  V.  Gunter,  11  N.  Y.  375,  per  Johnson.  J.  Bates  v.  Voorhees,  7 
How.  Pr.  E.  235, 


150  lUlsTvER   or    TLEADING   STATUTES. 

statute  -wliicli  has  expired,  is  continued  by  taking  notice  of  the 
latter,  a 

It  one  statute  have  prohibited  the  subsequent  statute,  it  is 
suthcient  to  plead  the  former  without  doing  of  an  act,  and 
another  be  afterwards  made  which  inflicts  a  forfeiture  on  the 
person  who  shall  do  the  act ;  the  person  who  sues  for  the  forfeiture 
uuTst  plead  both  statutes,  h 

No  person  is  obliged  to  recite  in  pleading,  any  more  of  the  stat- 
ute than  the  clause  which  makes  for  himself,  subject  to  the  rule 
l)eft)re  stated,  that  if  any  proviso  or  exception  is  parcel  of  the 
clause  which  is  pleaded,  the  exception  must  not  be  omitted,  or  it 
would  be  a  misrecital  of  the  clause.  But,  if  one  party  have  only 
[)leaded  such  part  of  a  statute  as  it  was  for  his  interest  to  plead, 
the  other  party  may  plead  any  other  part  of  the  statute,  c 

An  act  of  Parliament  sometimes  directs  the  manner  in  which 
a  defendant  shall  be  entitled  to  take  advantage  of  the  enactment, 
as  by  pleading  the  statute  in  bar  ;  in  such  cases  the  party  must 
pursue  the  remedy  pointed  out,  or  if  he  do  not  avail  himself  of 
it  at  the  proper  time,  and  in  the  manner  and  form  prescribed,  he 
cannot  take  advantage  of  it  aftcrwards.f/ 

If  a  statute  in  any  case  direct,  what  shall  be  pleaded,  the  plea 
must  be  in  the  words  of  the  statute,  and  all  indictments  upon 
penal  statutes  must,  it  has  been  said,  strictly  pursue  the  statute ; 
that  is,  when  properly  understood,  every  indictment  must  contain 
all  the  circumstances  necessary  to  constitute  the  crime ;  and 
those  circumstances  must  be  stated  positively,  "  without  any  peri- 
phrasis or  intendment."  But  unless  where  technical  words  have 
l)een  long  established  to  be  necessary  in  the  description  of  par- 
ticular offences,  (and  Lord  Kenyon  said  he  was  not  inclined  to 
multiply  the  instances,)  it  is  sufficient  that  the  substance  of  the 
offence  be  charged  with  certainty,  and  by  positive  allegations 
contained  in  some  (and  it  matters  not  in  what)  parts  of  the 
indictment  brought  within  the  words  and  meaning  of  the  act. 
Thus  it  has  been  held  sufficient  to  aver  pretences  to  be  false 
without  charging  that  the  defendant  falsely  pretended,  e 

The  authority  of  a  statute  may  be  considered  with  reference  to 
its  extent,  duration,  and  sanction. 

1.  It  is  the  highest  authority  which  this  kingdom  acknowledges 
upon  earth./  It  has  power  to  bind  every  subject  in  the  land,  and 
the  dominions  thereunto  belonging  ;  nay,  even  the  King  himself, 
if  particularly  named  therein.  It  can  discharge  a  person  from 
his  allegiance,  and  restore  him  to  a  state  of  nature,  g  It  can 
niake  his  estate  to  cease  in  the  same  manner  as  if  the  x>arty  pos- 

a  Stra.  lOGG.  h  PIo-.vd.  20G,  Bac.  Abr.  title  statute  1. 

c  Cro.  Jac.  240  ;  L.  Eaym.  120  ;  11  Mod.  207  ;  2  Hale  170. 
d  Taylor  v.  Blair,  3  Tenn.  E.  452.  e  The  King  v.  Airey,  2  East,  20. 

/I  Bl.  Com.  185.  g  12  Mod.  Rep    88;  The  City  of  London  v.  Wood. 


AUTHORITY  AND  EFFECT  OF  STATUTES.  151 

sessing  it  were  dead ;  as  is  doue  by  the  21  H.  8,  c.  13,  -wliicli 
declares,  that  if  a  person  accept  a  second  benefice,  the  first  shall 
be  void,  in  the  same  manner  as  if  the  incumbent  had  died.a  It 
can  dissolve  a  marriage,  and  enal)le  the  adulteress  to  intermarry 
Avith  her  paramour.?^  It  can  enable  a  man  to  have,  or  be,  an 
heir,  who  could  not  otherwise  have,  or  be,  an  heir.r;  An  estate 
tail  may  be  limited  by  a  statute  without  a  donor:  and  the  valid- 
ity of  such  a  hmitation  is  not  to  be  measured  by  the  rules  of  the 
common  law ;  for  the  statute  can  control  the  rules  of  of  the  com- 
mon law.f^  It  can  do  no  wrong  ;  but  "  it  may  do  several  things  that 
look  2>ri'{ti/  <>(hJ,"  (Lord  Holt's  expression  ;)  it  can  make  Malta  ni 
Europe,  and  can  make  a  woman  a  mayor,  or  a  justice  of  the  peace.e 

It  is  the  rule  that  the  King  shall  not  be  restrained  of  a  liberty 
or  a  right  he  had  before,  by  the  gisneral  words  (jf  an  act  of  Par- 
liament, if  the  King  is  not  named  in  the  act/  But  if  the  statute 
bo  intended  to  give  a  remedy  against  a  wrong/ to  prevent  fraud,  o 
tortious  usurpations,  or  the  decay  of  rehgion,  the  King,  though 
not  named,  shall  be  boimd  by  it.  So,  the  King,  though  not  spe- 
cially named,  is  bound  by  acts  for  the  advancement  of  rehgion  or 
of  learning,  or  for  providing  for  the  poor ;  as  by  the  act  10  Car. 
for  uniting  livings  in  Ireland.  So  the  general  words  of  the  stat- 
utes which  tend  to  ])erforni  the  will  of  the  founder  or  donor,  shall 
bind  the  King,  //  although  he  be  not  named,  i  These  instances, 
which  are  adduced  in  the  books  as  exceptions  to  the  rule,  cer- 
tainly open  the  door  to  great  latitude  of  construction,  and^  leave 
the  rights  of  the  Crown  very  unsettled  in  such  matters.  Yet  the 
authorities  which  support  the  doctrine  are  mostly  taken  from 
times  in  which  the  prerogative  was  highly  favored.  They  are 
collected  in  the  case  of  Willion  v.  Berkley.  /  It  was  there  held, 
by  the  Court  of  Common  Pleas,  that  the  King  was  bound  by  the 
Stat,  dedonis. 

It  was  said  in  the  Magdalen  College  case,A;  that  where  the  King 
has  any  prerogative,  estate,  right,  title,  or  interest ;  that  by  the 
general  words  of  an  act  of  ParHament,  he  shall  not  be  barred  of 
them.  In  later  instances  the  claim  is  only  asserted,  that  the 
King  shall  not  be  divested  of  any  of  his  prerogatives  but  by 
plain  and  express  words  for  that  purpose,  though  all  his  other 

a  6  Eep.  48;  Mildmay's  case.  h  12  Mod.  supra. 

c  1  Lev.  75.  d  1  Jon-  105;  Eaym.  355. 

e  2  Jon.  12.  /2Inst.  C81. 

(I  5  Rep.  14.  (b.)  '•    h  Str.  516. 

'i  11  Eep.  73.  j  Plowden,  239,  214. 

A;  11  Een.  74. 

HsoTE  3.— A  similar  rule  of  construction  is  found  in  this  country.  It  has  been 
held  that  the  general  words  of  a  statute,  do  not  include  the  government  or  effect 
its  rights,  unless  such  intention  be  clear  and  indisputable,  upon  the  face  of  the 
act.     United  States  v.  Hewes,  Crabbe.  E.  307. 


152  AUTHORITY  AND   EFFECT  OF  STATUTES. 

rights  arc  no  more  favored  in  law  than  the  rights  of  his  subjects.a 
The  sensible  conclusion  seems  to  be,  that  in  such  cases  he  may 
be  precluded  of  such  inferior  claims  as  might  belong  indifferently 
to  the  King  or  to  a  subject  (as  the  title  to  an  advowson  or  to  a 
hmded  estate,)  but  not  stripped  of  any  part  of  his  ancient  pre- 
rogative, nor  of  those  rights  Avhich  are  incommunicable,  and  are 
appropriated  to  him  as  essential  to  his  regal  capacity.^ 

In  a  modern  case,  arising  upon  the  "act  for  the  more  effectual 
administration  of  justice  in  England  and  Wales,"  the  court  said, 
"  In  an  act  of  Parhament,  passed  -expressly  for  the  further 
advancement  of  justice,  and  in  its  particidar  enactments  using 
terras  so  comprehensive  as  to  include  all  cases  brought  up  by 
writ  of  error,  we  think  there  is  neither  authority  nor  principle  for 
implying  the  exception  of  criminal  cases,  upon  the  ground  that 
the  king,  as  the  public  prosecutor,  is  not  expressly  mentioned  in 
the  act." 

If  an  act  speak  of  the  Ivuig  generally  and  indefiuitely,  naming 
him  in  his  poHtic  capacity,  it  extends  to  all  his  successors  ;  and 
to  a  Queen,  if  the  crown  descend  to  a  female,  c 

A  statute  beginning  "  Bex  perpcndens;''  &c  ;  so,  a  statute  saying, 
"  the  King  commandeth  that  no  man  shall  disturb  any  electors  to 
make  free  election,"  are  instances  where  tlie  King,  bemg  named, 
is  bound,  d 

And  though  it  is  said  that  the  King  shall  not  be  bound  by  a 
statute  (whether  affirmative  or  negative)  which  does  not  expresslj 
name  him,r?  yet  if  there  be  equivalent  words,  or  if  the  preroga- 
tive be  included  by  necessary  im23lication,  it  would  seem  to  admit 
a  different  construction.  Thus  the  stat.  7  H.  4,  c.  4,  provided 
that  protection  should  not  lie  for  a  warden  of  a  prison,  in  debt 
l)rought  against  him  upon  an  escape.  "  See,"  it  is  said,  "  that 
this  is  a  statute  which  shcdl  bind  the  King  ;  for  none  can  gi-ant 
protection  but  the  King  only,  and  therefore  that  the  statute  says 
that  the  protection  shall  not  lie,  is  as  much  as  to  say,  that  the 
King  shall  not  dispense  with  the  statute  ;  quod  nota.''' 

Statutes  often  affect  matters  of  subsequent  creation,/  in  hke 
manner  as  an  immemorial  custom  v.'ill  embrace  matters  arising 
within  the  time  of  legal  memory.f/ 

Eeliefs  of  dignities  are  provided  for  by  DIcujna  Charta  ;  digni- 
ties subsequently  created,  have  been  held  to  be  within  that  pro- 
vision. 

Some  statutes  are  temporary,  others  are  perpetual.  Every  stat- 
ute, for  the  continuance  of  whicli  no  time  is  limited,  is  perpetual, 
although  it  be  not  expressly  declared  to  be  so.     A  temporary 

a  Eex.  V.  Archbishop  of  Armagh,  8  Mod.  8.  /;  1  Woodis,  31. 

c  12  Eep.  110.  a  2  Inst.  31. 

e  Br.  Pari.  pi.  6;  Cro.  C.  52G;  Ascough's  case,  2  Hawk.  PI.  C.  411,  c,  42,  §  3. 

/Br.  Pari.  30,  cites  39  H.  G,  39.  rj  12  Mod.  485. 


rAETICLTLS.E  STATUTES.  153 

Statute  continues  in  force  (unless  it  be  sooner  repealed)  until  the 
time  for  wliich  it  is  made  expires  ;  a  per|")etual  one  until  it  is 
repealed. 

Acts  of  [)arlianient  altering  other  acts  in  force  in  the  colonies, 
(of  Great  Britain)  arc  considered  as  themselves  applying  there. 

If  an  act  be  penal  and  temporary  by  the  terms  or  nature  of  iir,- 
the  paily  oiiV'nding  must  be  prosecuted  and  punished  before  the 
act  expires.  Although  the  olience  should  have  been  committed 
before  the  expiration  of  the  act,  the  party  cannot  be  punished 
after  it  has  expu'ed,  unless  a  particular  provision  be  made  by 
hiAV  for  the  purpose.  On  this  account,  a  temporary  statute  is 
sometimes  a  made  to  continue  in  force,  after  it  has  ceased  to  ope- 
rate substantially,  for  the  purpose  of  supporting  prosecutions 
against  those  -who  have  violated  it  during  the  term  assigned  for 
its  contmuance. 

If  a  statute  be  temporary,  and  limited  to  a  given  number  of 
years,  and  before  the  expiration  of  the  time  it  be  made  perpetual 
by  another  act,  it  was  formerly  a  question,  under  which  statute 
offences  were  to  be  laid  to  have  been  committed.  In  the  case  of 
the  College  of  Plrrsicians  it  was  laid  down,  that  if  a  statute,  which 
was  to  have  continuance  only  for  seven  years,  have  been  after- 
M'ards,  by  another  statute,  made  pei^ietual,  only  the  latter  statute 
is  to  be  considered  in  force.  ]5ut  this  decision  was  erroneous, 
and  contrary  botli  to  former  h  and  to  latter  adjudications ;  which 
sufficiently  establish,  that  if  a  statute  be  permitted  even  to  expire, 
and  afterwards  be  revived  by  another  statute,  proceedings  ought 
to  be  referred  to  the  first  act,  the  law  deriving  its  force  from  the 
first  statute.  "  When  a  statute  is  continued,"  said  Lord  Hard- 
wiche,  in  Hex  v.  Morgan,  c  "every  person  is  estopped  to  say  that 
it  is  not  in  force."  And  the  Com-t  of  King's  Bench,  in  Shipman 
v.  Henbest,  d  held  that  the  statute  of  21  Jac.  1,  c.  4,  extends  to 
statutes  made  since,  which  revive  statutes  made  before  it ;  in 
other  words,  that  if  an  expired  statute  be  aftei*T\' ards  revived  by 
another  statute,  the  law  derives  its  force  from  the  first  act,  which 
is  to  be  considered  as  in  operation  by  means  of  tliis  revival.  If, 
however,  a  temporary  act  be  revived  after  it  has  expired,  without 
a  special  pro^•ision  reaching  to  the  intermediate  time,  the  mter- 
mediate  time  is  lost.  Ko  proceedings  can  be  pursued  under  a 
repealed  statute,  though  commenced  before  the  repeal,  unless  by 
special  exception.t^ 

Statutes  of  the  realm,  {(jiue  cdida  ct  statuia  sunt,)  are  the  decla- 
red will  of  the  supreme  power  in  the  state,  which,  unless  they  are 
repugnant  to  the  laws  of  God,  all  subjects  are  bound  to  obey. 

a  29  Geo.  3,  c.  6-1  ;  33  Geo.  3,  c.  66  ;  31  Geo.  3,  c.  80,  &c. 
I  Cro.  Eliz.  750.  c  Strange,  10G6. 

d  4  Term  Kep.  109  ;  ex  parte  Dryden,  5  T.  E.  418. 
e  Miller's  case,  3  Wils.  420  ;  S.  C.  1,  W.  Black.  451. 
20 


154  EEPEAL  OF  STATUTES. 

Created  bj  an  exercise  of  the  highest  authority  which  the  consti- 
tution of  this  country  acknowledges,  they  cannot  be  dispensed 
with,  altered,  amended,  suspended  or  repealed,  but  by  the  same 
authority  of  parliament  by  Avhicli  they  were  made.  For  it  is  a 
maxim  of  law,  that  it  is  cunverdem  naturali  cvqitati  miumquodque 
dissolfi  €0  Ugarnine,  quo  ligatum  est. 

An  act  of  parliament  cannot  be  repealed  by  non  user,  a  The 
Scotch  lawyers  hold,  that  a  statute  Joses  its  force  by  desuetude, 
if  it  hath  not  been  put  in  execution  for  sixty  years.  Other  wri- 
ters have  extended  this  term  to  a  century,  and  make  a  distinction 
between  statutes  half  obsolete,  and  those  in  viridi  observantia. 

An  act  of  Parliament'-'"  may  be  repealed  by  the  express  words 
of  a  subsequent  statute,  or  by  necessary  irresistible  "impHcation. 
ijut  an  act,  according  to  the  j)ositive  rules  of  both  Houses  of 
ParKament,  cannot  be  altered  or  repealed  in  the  same  session  of 
Parliament  in  which  it  was  passed,  unless  there  be  a  clause 
inserted,  expressly  reserving  a  poAver  to  do  so. 

If  a  subsequent  statute,  contrary  to  a  former  act,  have  nega- 
tive words,  it  shall  be  a  repeal  of  the  former  act. 

Every  affirmative  statute  is  a  repeal  of  a  precedent  affirmative 
statute,  where  its  matter  necessarily  inq^hcs  a  negative  ;  but  only 
so  far  as  it  is  clearly  and  indisputably  contradictory  and  contrary 
to  the  former  act  "in  the  very  matter"  (Foster  s  case;)  and  the 
repugnancy  such,  that  the  two  acts  cannot  be  reconciled;  for 
then  "  leges  'posteriores,  priores  contrarias  cihrogant."  The  leaning 
of  the  courts  is  so  strong  against  repeahng  the  positive  provis- 
ions of  a  former  statute  by  construction,  as  almost  to  establish 
the  doctrine  of  "no  repeal  by  implication."  But  this  goes  beyond 
the  Hmits  of  Fosters  case,  that  "  such  repeal  is  not  to  be  favored  ;" 
and,  in  a  recent  case.  Lord  Denman  said,  "  while  we  hold  that  a 
positive  enactment  is  not  to  be  restrained  by  inference,  we  must 
also  act  on  the  maxim, '  leges  posteriores  jjr lores  contrarias  ahrogant,' 
whenever  it  comes  in  operation."?)  * 

o  2  T.  E.  275. 

6  2  Q.  B.  Eep.  Eeg.  v.  Inhabitants  of  St.  Edmund's,  Salisbury,  p.  84. 

*  The  following  are  the  observations  of  the  framers  of  the  Code  Napoleon: — 
"Xes  Ms  conservent  leureffef,  iant  qiCelles  ne  sont  point  ahrogees  par  (Tautres  Ms,  on 
qu'elles  ne  sont  point  tombees  en  desuetude.  Si  nous  n'avons  pas  formellement  auiorise 
le  mode  d'abrogation par  la  desuetude  ou  le  non-usage,  c'est  qiC'd  eutpeut-etre  ete  danger- 
eux  de  lefaire.  Ilais  peut-on,  se  dissimuler  I' influence  ee  rutilite  de  ce  concert  indelibere, 
de  ceite  puissance  invisible,  par  laquelle,  sans  secousse  et  sans  commotion,  les  peuples  se 
font  justice  des  mauvaises  Ms,  et  qui  semUent  proteger  la  societe  conire  les  surprises 
faites  au  legislateur,  et  le  legislateur  contre  lui  meme." — Discours  preliminaire  du  pre- 
mier projet  du  Code  Civil. 

It  is  elsewhere,  in  the  same  admirable  dissertation,  philosophically  observed, 
"  Les  codes  depeupjles  sefont  avec  le  temps ;  mais,  a  proprement  parler,  on  ne  les  faV 
pas. " 

Note  4. — The  American  authorities  are  substantially  to  the  same  effect.  A 
ctatute  can  be  repealed,  only  by  an  express  provision  of  a  subsequent  law,  or  by 


IlEPEAL  OF  STATUTES.  155 

"  If  two  inconsistent  acts  be  passed  at  different  times,  the  last," 
said  the  Master  of  the  Eolls,  "  is  to  be  oljcyed,  and  if  obedience 
cannot  bo  observed  witliout  derogating  from  tlie  first,  it  is  the 
first  which  must  give  way.  Every  act  of  Parhament  must  be 
considered  with  reference  to  the  state  of  the  law  subsisting  when 
it  came  into  operation,  and  wlion  it  is  to  be  applied ;  it  cannot 
otherwise  bo  rationally  construed.  Every  act  is  made,  either  for 
the  purpose  of  making  a  change  in  the  law,  or  for  the  purpose  of 
better  declaring  the  law,  and  its  operation  is  not  to  be  impeded 
by  the  mere  fact  that  it  is  inconsistent  with  some  pre^dous  enact- 
ment, "a^ 

a  The  Dean  of  Ely  v.  Bliss,  5  Beav.  582. 

necessary  implication.  To  repeal  a  statute  by  implication,  there  must  be  such  a 
positive  I'epugnancy  between  the  provisions  of  the  new  law  and  the  old,  that  they 
cannot  stand  together,  or  be  consistently  reconciled.  Cool  v.  Smith,  1  Black. 
459;  Woodv.  U.  S.  16  Pet.  342,  10  Barr.  E.  448;  Hartford  v.  United  States,  8 
Cranch,  109;  Brown  v.  County  Commissioners,  21  Penn.  37;  Street  v.  Common- 
wealth, G  Watts  and  Serj.  209;  Bowen  v.  Lease,  5  Hill,  221;  Williams  v.  Potter,  2 
Barb.  31C;  People  v.  Deming,  1  Hilt.  271.  In  McCool  v.  Smith,  1  Black.  U.  S. 
R.  470,  Justice  Swayne  said,  "a  repeal  by  implication  is  not  favored;  the  leaning 
of  the  courts  is  against  the  doctrine,  if  it  be  possible  to  reconcile  the  two  acts  ol 
the  legislature  together."  Where  a  late  statute,  is  absolutely  repugnant  to  a  for- 
mer one,  only  in  part,  it  repeals  the  former  only  so  far  as  the  repugnancy  extends, 
and  leaves  all  the  remainder  in  force.  Van  Rensselaer  v.  Snj'der,  9  Barb.  308, 
and  cases  su])ra. 

Note  5. — The  more  natiiral,  if  not  necessary  inference  in  all  such  cases  is,  thai 
the  legislature  intend  the  new  law  to  be  auxiliary  to,  and  in  aid,  of  the  purposes 
of  the  oM  law.  There  should  be  therefore,  a  manifest  and  total  repugnancy  in 
the  provisions  of  a  new  law  to  lead  to  the  conclusion  that  the  latter  law  abroga- 
ted, and  was  designed  to  abrogate  the  former.  There  are  cases  however,  where, 
though  the  latter  statute  be  not  repugnant  to  a  former  one,  and  no  express  pro- 
vision in  the  latter  repealing  the  former,  if  the  latter  prescribe  the  only  rules 
which  shall  govern,  it  repeals  the  former  one  in  all  those  respects  in  which  it  dif- 
fers from  the  latter  as  to  the  governing  rule.  Daviess  v.  Fairborn,  3  How.  U.  S 
E.  636.  If  the  latter  statute  is  upon  the  same  subject  matter  with  the  former,  and 
introduces  some  new  qualification  or  modification,  so  that  it  is  imiDossible  both 
should  be  in  force,  then  the  latter  repeals  the  former,  but  if  it  be  possible  that 
both  can  stand,  by  construction,  the  question  resolves  itself  into  an  inquiry, 
what  was  the  intention  of  the  legislature  ?  Did  it  mean  to  repeal,  or  take  away 
the  former  law,  or  was  the  new  statute  intended  to  be  merely  cumulative  ?  U.  S. 
V.  Case  of  Hair  Pencils,  1  Paine,  400. 

A  rej)ealing  statute,  is  a  total  abrogatioa  of  the  law  repealed,  but  rights  acquired, 
and  which  became  perfect  under  the  law  before  its  repeal,  are  not  afiected  by  the 
repeal .    Prusseaux  v.  Welch,  2  Western  Law  Monthly,  209. 

A  repealing  act,  and  another  act  passed  at  the  same  session,  suspending  the 
eflfect  of  the  repealing  act  fo;.-  a  limited  period,  leaves  the  former  law  in  force 


156  KEPE^VL  OF  STATUTES. 

It  is  a  general  rale  tliat  subsequent  statutes,  wliicli  add  accu- 
mulative penalties,  and  institute  new  methods  of  proceeding,  do 
not  repeal  former  penalties  and  methods  of  proceeding  ordained 
by  precetling  statutes,  without  negative  words.  Nor  hath  a  latter 
act  of  parliament  ever  been  construed  to  repeal  a  prior  act,  unless 
there  be  a  contrariety  or  repugnancy  in  them,  or,  at  least,  some 
notice  taken  of  the  former  act,  so  as  to  indicate  an  intention  in 
the  lawgiver  to  repeal  it.  Neither  is  a  bare  recital  in  a  statute 
witliout  a  clause  of  rej)eal,  sufficient  to  repeal  the  positive  pro- 
visions of  a  former  statute,  a  The  law  does  not  favor  a  repeal  by 
implication,  imless   the   repugnance   be   quite   plain;  and   such 

a  Doro  &  Grey,  2  T.  E.  365. 

duriug  the  period  the  repealing  act  is  suspended.  This  was  held  in  relation  to 
statutes  of  the  state  of  Virginia  ;  that  state  having  adopted  the  British  rule  of 
construction,  that  all  statutes  passed  at  the  same  session,  take  effect  from  the  first 
day  of  the  session  ;  so  that  both  statutes  are  to  be  regarded  as  parts  of  the  same 
act.     Brown  V.  Barry,  3  Dallas,  367. 

Where  a  statute  is  repealed  by  a  subsequent  one,  and  a  third  act  is  then  passed 
declaring  the  first  not  to  have  been  repealed  by  the  second  ;  the  third  is  inopera- 
tive as  to  all  cases  occurring  before  its  passage.  Ogdenv.  Blacldedge,  2  Cranch. 
194. 

In  the  state  of  Ohio,  the  repeal  of  a  repealing  act  does  not  revive  the  original 
statute  ;  nor  does  the  repeal  of  a  prohibitory  act,  make  a  valid  contract  entered 
into  in  violation  of  the  act  repealed.     Milne  v.  Huber,  3  McLean,  212. 

A  subsequent  act  making  a  different  provision  on  the  same  subject,  is  not  to  be 
construed  as  an  explanatory  act,  but  an  implied  repeal  of  the  former,  if  the  latter 
act  be  incompatible  with  the  former.  Dash  v.  Van  Kleeck,  7  John.  497  ;  Colum- 
bian Manufac.  Co.  v.  Vanderpool,  4  Cow.  55G  ;  Livingston  v.  Harris,  11  "VVend.  329. 

If  the  latter  part  of  a  statute  is  repugnant  to  the  former  part,  it  shall  stand,  and 
so  far  as  it  is  repugnant,  shall  operate  as  a  repeal  of  the  former  part.  So  if  there 
are  two  statutes  on  the  same  subject  which  are  repugnant,  the  latest  operates  as  a 
repeal  of  the  first,  so  far  as  the  repugnancy  extends,  but  no  farther.  The  latest 
expression  of  the  legislative  will  must  i^revail.  Harrington  v.  Trustees  of  Koch- 
es-ter,  10  Wend.  550  ;  Bac.  Abr.  tit.  statutes  D  ;  Bowen  v.  Lease,  5  Hill,  225,  and 
note;  Williams  v.  Potter,  2  Barb.  316;  People  v.  Deming,  1  Hilton  271;  Van 
Eonsselaer  v.  Snyder,  9  Barb.  302 . 

Piepeals  by  implication,  are  not  favored  in  law,  and  are  never  allowed  but  in 
cases  where  inconsistency  and  repugnancy  are  plain  and  unavoidable.  Cases 
last,  supra,  and  Wallace  v.  Bassett,  41  Barb.  92. 

In  a  criminal  case,  where  the  judgment  was  pending  for  review  upon  a  writ  of 
error,  and  between  the  rendition  of  the  judgment,  and  the  healing  Tijion  the 
writ,  the  statute  upon  which  the  judgment  was  rendered,  was  repealed,  it  was 
held  that  the  judgment  shoiild  be  reversed,  notwithstanding  the  judgment  was 
correct  upon  the  law  when  it  was  pronounced,  on  the  ground  that  the  repeal  of 
the  law  imposing  the  penalty,  though  it  took  place  after  conviction,  arrested  the 
judgment,  on  the  ground,  that  there  was  then  no  law  that  authorized  the  execu- 


REPE.\L  OF  STATUTES.  157 

repeal  carrying  -with  it  a  reflection  on  the  -wisdom  of  former  par- 
liaments, it  has  ever  been  confined  to  repealing  as  little  as  possi- 
l)le  of  the  preceding  statutes,  a  Althongh,  then,  two  acts  of  par- 
liament are  seemingly  repugnant,  yet  if  there  Ije  no  clause  of  non 
oh.slanle  in  the  latter,  they  shall,  if  possible,  have;  such  constmc- 
tion,  that  the  latter  may  not  be  a  repeal  of  the  former  by  impli- 
cation. The  same  view  has  been  taken  where  powers  under  sev- 
eral acts  are  such  as  may  well  subsist  together,  h  A  sul)sequent 
act,  too,  which  can  be  reconciled  with  a  former  act,  shall  not  be 
a  repeal  of  it,  though  there  be  negative  words ;  as  the  1  &  2  Ph. 
tt  M.  c.  10,  that  all  trials  for  treason  shall  be  according  to  the 
course  of  the  common  law,  and  not  otherwise,  does  not  take  away 
35  H.  8,  c.  2,  for  trial  of  treason  beyond  sea.  c 

a  11  Eep.  G3;  Dyer,  31?!  h  15  East.  377. 

c  For.slor's  case,  11  Hep.  G3. 
tiou  of  the  judgment.    In  a  civil  ca.se  it  would  it  seems  be  othenvi.se.     Hartung 
V.  the  People,  22  N.  Y.  11.  'J5;  Sauchoz  v.  the  People,  id.  155. 

The  repeal  of  a  statiite  creating  an  offence  before  trial  for  such  offence,  is  a  bar 
to  a  conviction.  Cook  v.  Board  of  Police,  16  Abbott,  Pr.  E.  473,  S.  C.  40,  Barb. 
C2C. 

Where  some  of  the  provisions  of  a  statute  arc  void  for  unconstitutionality,  a 
general  I'epealing  clause  in  such  statute  ■which  repeals  all  provisions  of  law  in 
conflict  with  it,  does  not  repeal  provisions  which  conflict  only  with  that  part 
\rhichis  void.    Harbeck  v.  Mayor,  «fcc.  10  Bosw.  36G, 

"When  a  new  statute  covers  the  whole  subject  matter  of  an  old  one,  and  adds 
offences  and  prescribes  different  penalties  from  those  enumerated  in  the  old  law, 
it  is,  by  necessarj^  implication,  a  repeal  of  the  former  statute.  Korris  v.  Croker, 
13  How.  U.  S.  11.  429. 

The  suspension  of  an  act,  cannot  be  construed  to  be  a  repeal  of  it.  Brown  v, 
Barry,  3  Dall.  365,  note  15.  All  legislative  acts  are  repealable.  The  most  inju- 
rious consequences  would  be  the  result  of  a  contrary  doctrine.  Bloomer  t. 
Stoll}',  5  McLean,  IGl ;    Kellogg  v.  Oshkosh,  14  Wis.  623. 

Where  a  perfect  right  of  action  has  accrued  on  a  contract  which  is  authorized 
by  a  statute,  neither  the  contract,  nor  a  suit  pending  for  its  enforcement  will  be 
atfectcd  by  a  repeal  of  the  statute.  Pacific  Mail  Steam  Co.  v.  JoUiffe,  2  Wallace, 
450.  This  is  based  upon  the  reason  that  there  was  a  vested  right  independent  of 
the  statute.  But  it  is  otherwise  in  a  case  where  a  party  is  prosecuting  for  a  pen- 
alty. .  A  party  has  no  vested  right  in  a  penalty  until  after  judgment  obtained. 
The  legislatiare  may  discharge  a  defendant  by  repealing  the  law.  Korris  v. 
Crocker,  13  How.  429.  And  a  prosecution  for  an  offence  punishable  by  fine  and 
imi^risonment,  is  barred  by  a  repeal  of  the  act  creating  it;  and  a  saving  clause  in 
the  repealing  act,  excepting  sidisfor  "penalties  and  forfeitures  "  does  not  reach  the 
case.  U.  S.  v.  Mann,  1  Gallison,  177.  So  too,  an  indictment  connot  be  sustained 
under  a  statute  which  has  been  repealed  without  a  saving  clause.  U.  S.  v.  Pas- 
samore,  4  Dallas,  372.  So  it  was  held  by  Ch.  J.  Marshall  in  the  case  of  the 
"  Irresistable  "  7  Wheat.  552,  that  an  offence  against  a  temporary  act,  cannot  be 


158  REPEAL   OF   STATUTES. 

When  there  is  a  difference  in  the  whole  purview  of  two  statutes, 
apparently  relating  to  the  same  subject,  the  former  remains  in 
force,  a 

It  has  been  held,  however,  that  clauses  which  limit  in  any  way 
the  right  of  the  crown,  must  be  considered  as  repealed  by  subse- 
quent statutes,  unless  expressly  re-enacted,  h 

It  has  been  before  seen,  that  by  a  decision  of  the  Court  of  Ex- 
chequer, if  tlie  latter  part  of  the  statute  be  repugnant  to  the 
former  part  thereof,  it  shall  stand,  and  so  far  as  it  is  rej^ugnant, 
be  a  repeal  of  the  former  part ;  because  it  was  last  agreed  to  by 
the  makers  of  the  statute,  c 

On  every  act  professing  to  repeal,  or  interfere  with,  the  provis- 
ions of  a  former  law,  it  is  a  question  of  construction,  whether  it 
operate  as  a  total,  or  partial,  or  temporary  repeal.  The  word 
"  repeal "  is  not  to  be  taken  in  an  absolute,  if  it  appear  upon  the 
whole  act  to  be  used  in  a  limited,  sense,  d  Where  several  acts  of 
parhament  upon  the  same  subject  had  been  totally  repealed,  and 

a  Rex  V.  Downes,  3  T.  E.  569.  h  Atty.  Gen.  v.  Newman,  1  Price,  438. 

c  Fitzgib.  195.  d  Eex  v.  Rogers,  10  East.  573. 

punished  after  the  expiration  of  the  act,  unless  there  be  a  i^articular  provision 
made  by  law  for  the  purpose. 

A  repealing  act,  like  other  acts,  only  takes  effect  from  its  approval  by  the  Pres- 
ident, or  Governor.  All  prior  proceedings  on  the  same  day  are  valid,  and  the 
jorecise  time  of  executive  approval  it  seems,  may  be  inquired  into  as  a  question 
of  fact.  Richardson's  case,  2  Story  R.  571 ;  Aukrim's  case,  3  McLean,  571.  The 
contrary  of  this,  however,  was  held  in  Welman's  case,  20  Vt.  R.  G53,  and  in  the 
case  of  Howes,  21  Vt.  619.  I  think  sound  reason,  and  the  highest  demands  of 
justice,  are  against  the  Vermont  rule. 

Where  a  statute  imposes  a  penalty  for  an  act  done,  injurious  to  the  rights  of 
others,  such  penalty  to  be  recovered  by  the  party  aggrieved,  the  penalty  is  in  the 
nature  of  a  satisfaction  to  him,  as  well  as  a  punishment  to  the  offender.  In  such 
case  the  jilaintiff  has  acquired  a  vested  right  to  the  penalty,  as  soon  as  the  offence 
is  committed;  and  a  general  repeal  of  the  statute  after  action  brought  does  not 
affect  that  right.  President,  &c.,  of  London  v.  Harrison,  9  Barn,  and  Ores.  524; 
Company  of  Cutlers  v.  Euslin,  Skinner  R.  365;  Palmer  v.  Conly,  4  Denio, 
374-5. 

The  repeal  of  a  statute  does  not  take  away  the  plaintiff's  cause  of  action  under 
it  for  damages  for  an  injury  to  his  property.  Vandekar  v.  Rensselaer  &  Sar.  R. 
R.  Co.  13  Barb.  390. 

Where  a  right  to  damages  has  vested,  under  a  statute,  its  repeal,  attempting  to 
destroy  that  right,  is  void,  it  is  beyond  the  scope  of  legislative  power.  People  v. 
Supervisors  of  Westchester  Co.  4  Barb.  64. 

Where  a  statute  creating  an  offence  is  repealed,  it  is  a  bar  to  a  subsequent 
action,  for  an  offence  committed  before  the  repeal.  Howard  v.  State,  5  lud. 
(Porter)  183.  The  right  to  recover  a  penalty  is  lost  by  a  repeal  of  the  act,  unless 
saved  in  the  repealing  act.     Id.  535;  Heald  v.  State,  36  Maine,  62. 


REPEAL  OJ?  STATUTES.  lo'J 

others  repealed  in  part,  it  was  held  that  it  must  have  been  the 
clear  intention  of  the  legislature  that  only  the  part  of  an  act  par- 
ticularly pointed  o\it,  should  be  repealed,  a 

If  a  statute,  before  peri)etu;d,  be  continued  by  an  aflirniative 
statute  for  a  limited  time,  this  does  not  amount  to  a  repeal  thereof 
at  the  end  of  that  time,  h  But  e  ccmtra  where  a  statute  professes 
to  repeal  absolutely  a  prior  law,  and  substitutes  other  provisions 
on  the  same  subject,  which  are  hmited  to  continue  only  till  a  cer- 
tain time,  the  prior  law  does  not  revive  after  the  repealing  statute 
is  spent,  unless  the  intention  of  the  legislature  to  that  effect  is 
exi)ressed.  c 

Where  one  statute  is  repealed  by  another  statute,  acts  done  in 
the  meantime,  while  it  was  in  force,  shall  endure  and  stand,  and 
be  good  and  effectual ;  but  not  so,  it  has  been  said  {quaere  lamen) 
if  the  former  act  be  declared  null  and  void,  d 

By  the  repeal  of  a  repeahng  statute,  (the  new  law  containing 
nothing  in  it  that  manifests  the  intention  of  the  legislature  that 
the  former  act  shall  continue  repealed),  the  original  statute  is 
revived  ;  but  if  a  statute  be  repealed  by  several  acts,  a  repeal  of 
one  act  or  two,  and  not  of  all,  does  not  revive  the  first  statute,  e 
If  a  repealing  statute,  and  part  of  the  original  statute,  be  repealed 
by  a  subsequent  act,  the  residue  of  the  origuial  statute  is  revived/ 
If  an  act  of  parliament  be  revived,  all  acts  explanatory  of  that  so 
revived,  are  revived  also.  7 

Where  the  words  are,  that  "  no  statute,  not  expressly  mentioned, 
shall  be  revived;"  but,  by  the  repeal  of  the  repeahng  statute,  a 
statute  is  re^dved,  which  mentions  another  to  be  in  force,  this 
sliall  also  operate  as  a  re\ivor  of  the  last-mentioned  statute  ;  as 
was  the  case  with  the  stat.  21  Hen.  8,  of  pliu'ahties,  mentioned  to 
be  in  force  by  the  stat.  25  Hen.  8,  c.  21,  w  hich,was  revived  by  the 
stat.  1  EUz.  1,  though  that  act  says  that  no  statute  repealed  by  1  &  2 
Ph.  &  M.  stat.  ^,  shall  be  in  force,  if  it  be  not  specially  revived,  h^ ' 

a  Camdeu  v.  Anderson,  6  T.  K.  723.  h  Ravm.  397. 

c  "NVarren  v.  Windle,  3  East.  205.  d  Jenk.  Cent,  283,  pi.  6. 

e  The  Bishop's  case,  12  Kep.  7  ;  Tattle  v.  Grimwood,  4  Bing.  496. 
/•  9  B  &  C.  354.  g  2  Burr.  747.  h  1  Vent.  22. 

Note  6. — "Where  a  statute  reviving  a  statute  which  has  been  repealed,  is  itself 
repealed,  the  statute  which  was  revived  stands  as  it  did  before  the  revival.  Cal- 
vert v.  Makepeace,  1  Smith,  (Ind.)  86. 

Note  7.— Congress  may  make  the  revival  of  an  act  dependent  upon  a  future 
event,  and  direct  that  event  to  be  made  known  by  proclamation.  7  Cranch,  R. 
332.  Id  570. 

When  a  statute  is  revived  by  a  subsequent  act,  it  is  revived  precisely  in  the  form 
and  with  the  effect  which  it  had  when  it  expired.  Peck  v.  Pease,  5  McLean  R. 
480,  and  though  there  be  an  interval  between  the  expired  act,  and  the  act  reviving 
it,  the  rights  of  parties  under  the  original  act  are  preserved,  unless  the  rights  of 
third  parties  have  intervened  during  the  interval.  Stevens  v.  McCargo,9  Wheat.502. 


IGU  EErE.VL  OF    STATUTES. 

AYheii  an  act  of  parliament  is  repealed,  it  must  be  considered 
(except  as  to  transactions  past  and  closed,)  as  if  it  bad  never  ex- 
isted. The  stat.  5  Geo.  4,  c.  98,  repealed  all  former  bankrupt 
acts.  That  was  repealed  hj  G  Geo.  4,  c.  IG,  which  repeal  had  the 
eti'ect  of  setting  up  the  old  acts  from  the  2d  of  May,  1825,  when 
the  G  Geo.  4,  c.  IG,  passed,  until  the  1st  of  September,  1825,  when 
the  last  mentioned  act  came  into  operation  ;  but  they  then  ceased 
to  exist,  and  the  powers  given  by  them  were  extinguished,  the 
legislature  having  made  no  provision  for  issuing  commissions  after 
the  G  Geo.  4  took  effect,  upon  acts  of  bankruptcy  previously  com- 
mitted. "  We  are  to  look,"  said  Lord  Tenterden,  a  "  at  the  stat. 
G  Geo.  4,  c.  IG,  as  if  it  were  the  first  that  had  ever  been  passed 
upon  the  subject  of  bankruptcy."  So,  in  a  criminal  case,  h  an 
act,  from  its  passing,  repealed  a  former  act,  which  ousted  clergy 
from  a  certain  offence,  and  imposed  a  new  penalty  on  the  same 
oHence  from  and  after  its  passing.  It  was  held  that  an  offence 
committed  before  the  passing  of  the  new  act,  but  not  tried  till 
after,  was  not  liable  to  be  punished  under  either  of  these  statutes. 
For  the  former  act  was  repealed  ;  and  as  to  the  latter,  the  pro- 
visions cannot  be  retrospective,  unless  declared  to  be  so  by  express 
words  ;  either  by  an  enumeration  of  the  cases  in  which  the  act  is 
to  have  a  retrospective  operation,  or  by  words  which  can  have  no- 
meaning  unless  such  construction  is  adopted,  c 

If  an  act  be  to  have  continuance  for  three  years,  and  from 
thence  to  the  end  of  the  next  session  of  parliament,  it  shall  con- 
tinue to  the  end  of  a  session  which  begins  after  the  three  years, 
tliough  a  session  within  three  years  continue  several  months  after 
the  three  years. 

As  every  statute  made  against  an  injury,  mischief  or  grievance, 
impliedly  gives  a  remedy,  the  party  injured,  if  no  remedy  be  ex- 
pressly given,  may  have  an  action  upon  the  statute,  d  If  a  pen- 
alty be  given  by  a  statute,  but  no  action  for  the^^ecovery  thereof 
be  given,  an  action  of  debt  will  lie  for  the  penalty,  e ' 

a  Surtees  v.  Ellison,  9  B.  &  C.  752;  and  see  Maggs  v.  Huut,  4  Biiig.  212;  Kay 
V.  Gordon,  6  Bing.  582. 

b  Eex  V,  Mackenzie,  B.  &  B.  C.  C.  429. 

c  Churcliill  v.  Crease,  .5  Bing.  178;  Torringtou  v.  Hargravep,  id.  492. 

d  2  lust.  53;  10  Bep.  75.  e  Popli.  175, 

Note  8. — In  the  Bevised  Statutes  of  this  State,  Vol.  2,  480,  §  1,  it  is  i^rovided, 
that  where  a  joecuniary  penalty  or  forfeiture  is  si^ecially  granted  bj''  law  to  any 
person  injured  or  aggrieved  by  the  act  or  omission  of  another,  the  same  may  bo 
sued  for  in  an  action  of  debt  or  assumpsit.  Under  this  statute  it  has  been  held, 
that  in  the  absence  of  any  provision  to  the  contrary,  the  party  injured  or  aggriev- 
ed by  such  act,  may  bring  an  action  in  his  own  name  ;  the  implication  of  law  is 
that  the  right  so  to  sue  is  thereby  given  to  the  party  so  injured.  Thompson  v. 
Howe,  46  Barb.  287;  Conly  v.  Palmer,  2  Comst.  182.  The  penalty  when  recov- 
ered is  in  the  nature  of  satisfaction  for  the  wrong  done. 


EFFECTS   OF  rilOHIBITOEY  GTATUTES,  IGl 

\Vlicn  a  statute  commaiuL-;  or  prohibits  a  tiling  of  i^ublic  cou 
cern,  the  person  guilty  of  disobedience  to  the  statute,  besides 
being  answerable  in  an  action  to  the  pai-ty  injured,  is  likewise 
liable  to  be  indicted  for  the  disobedience,  a  "Wherever  a  statute 
forbids  the  doing  of  a  thing,  the  doing  it  wilfully,  although  without 
any  corrupt  motive,  is  indictable,  h  If  a  statute  enjoin  an  act  to 
be  done  without  pointing  out  any  mode  of  punishment,  an  indict- 
ment will  lie  for  disobeying  the  injunction  of  the  legislature,  c 
Thus  where  a  statute  conmiands  a  matter  of  puljlic  convenience, 
as  the  repairing  of  the  connnon  streets  of  a  town,  an  ohender 
against  such  statute  is  punishable,  not  only  at  the  suit  of  the 
party  grieved,  but  also  by  way  of  indictment  for  his  contempt  of 
the  statute,  unless  such  method  of  proceeding  do  manifestly 
appear  to  be  excluded  by  it. 

But  if  the  thing  commanded  or  in-ohibited  by  a  statute  can  only 
be  prejudicial  to  one  or  two  persons,  as  if  it  be  to  repair  the  banks 
of  a  river,  from  want  of  havmg  done  which  the  ground  of  a  cer- 
tain person  has  been  overflowed,  no  indictment  lies  ;  the  remedy 
being  by  an  action  upon  the  case,  d  So,  if  a  statute,  although  it 
extend  to  all  persons,  chiefly  concerns  disputes  of  a  private  natui'e, 
as  those  between  landlords  and  tenants  relating  to  distresses,  an 
offence  against  the  statute  is  not  indictable,  e 

If  a  statute  inflicts  a  penalty  for  doing  an  act,  the  penalty  im- 
plies a  prohibition,  and  the  thing  is  unlawful,  though  there  be  no 
prohibitory  words  in  the  statute.  This  rule  applies  to  the  case  ot 
a  statute  inflicting  a  penalty  for  making  a  ])articular  contract,  as 
a  simoniacal  or  usurious  contract,/"  in  which  it  has  been  held  that 
the  contract  was  void  under  the  statute,  though  there  was  a  pen- 
alty imposed  for  making  it.  A  question  has  been  made,  whether, 
where  a  statute  creating  a  new  offence,  gives  a  penalty,  and 
directs  how  it  shall  be  recovered,  the  offence  can  be  punished  in 
any  other  way  than  that  directed  by  the  statute,  r/  Upon  which, 
the  proper  inquiiy  to  be  made  is,  1st,  Was  the  doing  of  the  thing, 
for  which  the  penalty  is  inflicted,  lawful  or  unlawful  before  the 
passing  of  the  act?  2dly,  Is  there  a  general  prohibitory  clause 
in  such  statute,  or  no  '? 

When  the  statute,  making  the  new  ofl'ence,  is  not  prohibitory, 
but  only  inflicts  the  forfeiture  and  specifics  the  remedy,  an  indict- 
ment will  not  lie./i  The  true  rule  was  laid  down  by  Lord  Mansfield 
in  the  case  of  the  King  v.  Eobinson,  i  that  where  the  offence  was 
punishable  before  the  statute  prescribing  a  particular  method  of 
punishing  it,  then  such  particular  remedy  is  cumulative,  and  does 

a  Cro,  Eliz.  C35;  2  Inst.  131,  103.  h  R.  v.  Saiutsbury,  d  T.  E.  457. 

c  K.  V.  Davis,  Say.  133.  d  Sid.  209. 

c  1  Hod.  71.  /rcr  Lord  Holt,  Carth.  251;  Skiu.  222. 

;/  Castle's  Case,  Cro.  Jac.  G13,  h  R.  v.  Wright,  1  Burr.  513. 

i  2  Burr.  805;  R.  v.  Boycll,  2  Burr.  832;  Cowu.  521,  G5G. 
-11 


162  EFFECTS   OF  rEOHIBITOEY  STATUTES. 

not  take  away  the  common  law  punishment,  and  eitlier  remedy 
may  be  pursued.  Thus  in  Beekford  and  Hood,  the  question  was, 
whether  the  right  of  property  being  vested  in  authors  for  certain 
periods,  the  common  hiw  remedy  for  a  violation  of  it,  attaches 
within  the  times  limited  by  the  act  of  parliament,  there  being 
certain  penalties  affixed  for  transgressing  the  law  ?  "  But  it  has 
been  argued,"  said  Lord  Kenyon,  "  that  as  the  statute,  a  in  the 
same  clatise  that  enacts  the  right,  has  .prescribed  a  particular 
remedy,  that  that  and  no  other  can  be  resorted  to.  And  if  such 
appeared  to  have  been  the  intention  of  the  legislature,  I  should 
have  subscribed  to  it,  however  inadequate  it  might  be  thought. 
But  their  meaning  in  creating  the  penalties  in  the  latter  part  of 
the  clause  in  question,  certainly  was  to  give  an  accumulative  rem- 
edy ;  nothing  could  bo  more  incomplete  as  a  remedy  than  those 
penalties  alone,"  &c. 

This  doctrine  was  recognized  in  a  modern  case  :  "  The  general 
rule  of  law  and  construction  undoubtedly  is,  that  where  an  act  of 
parhament  does  not  create  a  duty  or  offence,  but  only  adds  a 
remedy  in  respect  of  a  duty  or  offence  wdiich  existed  before,  it  is 
to  be  construed  as  cumulative,;  but  this  rule  must  in  all  cases  be 
apphed  with  due  attention  to  the  language  of  each  act  of  parha- 
ment." h 

But  where  the  statute  only  enacts,  that  the  doing  any  act  not 
punishable  he/ore,  shall  for  the  future  be  i)unishable  in  such  and 
such  a  particular  manner;  there  the  particular  method  prescribed' 
by  the  act  must  be  specifically  pursued,  and  not  the  common  law 
method  of  proceeding.  The  mention  of  one  method  of  proceed- 
ing, impliedly  excludes  that  of  indictment. 

"  It  is  in  the  general  true,"  say  the  books,  "  that  no  statute  is 
to  have  a  retrospect  beyond  the  time  of  its  commencement;"  for 
the  rule  and  law  of  parliament  is,  that  nova  constitutiofiituris,for- 
mam  debet  imponere,  non  lyrccteritis.  And  not  only  is  it  the  doc- 
trine of  the  English  law  that  a  statute  is  not  to  have  a  I'etrospec- 
tive  effect,  but  it  is  also  founded  on  the  principles  of  general 
jurisprudence.*  A  retroactive  statute  would  partake  in  its  char- 
acter of  the  mischiefs  of  an  ex  post  facto  law,  as  to  all  cases  of 
crimes  and  i^enalties  ;  and  in  matters  relating  to  contracts  or 
property,  w^ould  violate  every  sound  principle.''     Before  the  day 

a  7  T.  E.  C20;  C  East.  327.  h  Per  Tindal,  C.  J.  8  Bing.  391. 

*  "  En  general,  les  lol.'!  n'unt  point  deffet  retroacUf.  Ze  pr'nicipe  est  inconiesiible,"  etc, 
Discours  IPreliminaire  du  premier  Projec  du  Code  Civil. 

Article  2 — Titee  peeliminaiee  de  la  publication  des  lois  :  La  lot  ne  dispose 
que  pour  Vavenir;  elle  n'a  point  d'effet  rdroadif. " 

Note  9. — The  American  authorities  are  quite  luiiform  on  the  retroactive  effect 
of  statutes.  The  general  rule  is,  that  no  statute,  however  positive  in  its  terms,  is 
to  be  construed  as  designed  to  interfere  with  existing  contracts,  rights  of  action 
or  suits,  and  especiallj'  vested  rights,  unless  the  intention  that  it  shall  so  operate 


RETEOSPECTIVE   STATUTES,  163 

on  which  the  statute  of  frauds  took  effect  (the  24th  day  of  June, 
1097),  a  verbal  promise  was  made  to  give  or  bequeath  a  sum  of 
money  in  consideration  of  marriage,  a  On  an  action  against  the 
executors,  the  (juestion  made,  u})on  a  special  verdict,  Avas,  Avhe- 
ther  this  promise,  not  being  in  writing,  was  Avithin  th(!  20  Cur.  2, 
c.  o  ?  By  the  court :  "  It  cannot  be  presumed  that  the  statute 
was  to  have  a  retrospect,  so  as  to  take  away  a  right  of  action 
which  the  ])laiiitilf  was  entitled  to  before  the  time  of  its  com- 
mencement." And  the  court  put  the  case  of  a  will  executed  with- 
out the  formalities  re(|uired,  which  they  said,  would  bo  valid,  if 
uuide  before  the  act,  although  the  testator  survived  the  passing  of 
the  act.  In  the  case  of  Ashburnham  and  Bradshaw,  a  devise  to 
charitable  uses  was  made  by  a  Avill  dated  in  1731.  The  testator 
lived  till  July,  17oG,  a  month  after  the  Mortmain  Act  had  passed; 
and,  upon  a  case,  the  judges  certified  that  the  devise  was  good ;  h 
notwithstanding  the  statute. 

a  Gilmore  v,  Sliutcr,  2  Luv,  227;  S,  C,  2  Mod,  210:  1  Veut,  330. 
b  2  Atk,  3G, 

is  expressly  dccliii-cd,  and  courts  will  apply  ucw  statutes  only  to  future  cases, 
unless  there  is  sometbiuj^  in  the  very  nature  of  the  case,  or  iu  the  language  of  the 
new  provision,  which  shows  that  they  Avere  intended  to  have  a  retroactive  opera- 
tion. And  although  the  words  of  the  statnte  are  broad  enough  in  their  literal 
extent  to' comprehend  existing  cr.scs,  they  must  j'et  be  construed  as  applicable 
only  to  cases  that  maj'  thereafter  arise,  unless  a  contrary  intention  is  unequivo- 
cally expressed  therein.  Wood  v.  Oakley,  11  Paige,  403;  Butler  v.  Palmer  1  Hill, 
32.j;  Johnson  v.  Burrell,  2  Hill,  238;  Dash  v.  Van  Kleeck.  7  John.  499;  Berley  v. 
Ivampacher,  5  Duer,  183;  Calkins  v.  Calkins,  3  Barb.  20G;  Sackett  v.  Audross,  5 
Hill  334;  Veddcr  v.  Alkcubrack,  G  Barb.  328;  People  v.  Supervisors  of  Columbia 
Co.  10  Wend.  3G2;  Van  Ecnsselacr  v.  Livingston,  12  id.  490.  Indeed  some  of  the 
cases  have  gone  even  farther  than  this,  and  hold,  that  where  vested  rights  are  iu 
question,  that  even  express  words  in  a  statute  giving  in  terms  a  retroactive  eflfeet 
to  an  enactment,  cannot  work  that  eflcct.  In  the  case  of  Warren  Manufacturing 
Co.  V.  The  Etna  Insurance  Co.  in  the  United  States  Circuit  Court  of  Connecticut, 
Thompson,  J.,  in  an  opinion  reported  in  2  Paines  C.  C.  K.  517,  says,  in  relation 
to  a  law  purporting  to  have  a  retrosjiectivc  operation,  "But  the  law  in  question 
although  it  purports  upon  its  face  to  have  a  retrospective  operation,  cannot  be 
considered  as  having  such  effect  and  operation.  It  is  a  sound,  general  principle, 
that  no  statute  ought  to  have  a  retrospective  effect.  It  is  the  general  rule  that  a 
statute  takes  effect  from  its  date,  when  no  time  is  lixed  ;  and  it  cannot  upon  sound 
principles  be  admitted,  that  a  statute  shall,  by  any  fiction  or  relation,  have  any 
effect  before  it  was  actually  passed.  A  retroactive  statute  isartakes,  in  its  charac- 
ter, c^  ihe  mischiefs  of  an  cxpost  facto  law,  and  when  applied  to  contracts  or  pro- 
perty, would  be  equally  unjust  and  unsound  in  princii^le  as  ex  jmst  facto  laws 
when  applied  to  crimes  and  penalties."  The  rule  of  interpretation  by  which  that 
construction  of  a  statute  is  to  be  avoided,  which  gives  it  a  retrospective  operation, 
has  little  or  no  application  in  construing  the  organic  law.  Matter  of  Oliver  Lee 
&  Co.  Bank,  21  N.  Y.  9.     In  the  case  of  Jarvis  v.  Jarvis,  3  Edw.  Ch.  46G,  the  Vice 


1G4  LETEOSPECTIVE  STATUTES, 

The  question  -wlietlicr  a  retrospective  act  lias  any  binding  force, 
involves  the  question  of  legislative  power.  We  have  before  said 
that  the  legislation  of  a  state  possesses  all  legislative  power  not 
prohibited  by  the  constitution.  But,  by  all  known  rules  of  inter- 
pretation, the  general  rule  as  to  their  power,  by  its  very  nature,  is 
prospective.  They  are  invested  with  the  power  to  enact  laws. 
Laws  are  rules  of  civil  conduct,  prescribed  for,  and,  attaching 
themselves  to  the  future  actions  of  men.  They  must  from  neces- 
sity, and  fi'om  their  nature,  be  prospective  ;  otherwise  they  cannot 
bo  rules  of  civil  conduct.  Laws  cannot  attach  themselves  to  con- 
duct antecedent  to  the  creation  of  the  rules  themselves.  This 
would  be  a  thing  impossible;  for,  at  the  time  the  particular 
transaction  took  place,  there  being  no  rule,  a  law  subsequently 
passed,  was  not,  and  from  the  nature  of  the  case,  could  not  liave 

CbaDcellor  approved  of  the  rule  laid  down  in  the  case  last  cited.  Chancellor  Kent, 
in  1  Com.  455,  saj's,  "  a  retrospective  statute,  afifecting  and  changing  vested  rights, 
is  very  generally  considered,  in  this  country,  as  founded  on  unconstitutional 
principles,  and  consequently  inoiierative  and  void."  "But  this  doctrine  is  not 
understood  to  apply  to  remedial  statutes,  which  may  be  of  a  retrospective  nature, 
provided  they  do  not  impair  contracts,  or  disturb  absolute  vested  rights  already 
existing,  and  in  furtherance  of  the  remedy,  by  curing  defects,  and  adding  to  the 
means  of  enforcing  existing  obligations.  Such  statutes  have  been  held  valid 
when  clearly  just  and  reasonable,  and  conducive  to  the  general  welfare." 

In  the  constitution  of  the  State  of  New  HamiDshire,  part  1,  §  23,  it  is  declared, 
"  Eetrospective  laws  are  highly  injurious,  opi^ressive  and  unjust.  No  such  laws 
should,  therefore,  be  made,  either  for  the  decision  of  civil  cases  or  the  piinish- 
ment  of  offences."  See  Woart  v.  "Wiunich,  3  N.  H.  K.  473,  and  Dow  v.  Norris,  4 
N.  H.  E.  IG. 

It  is  within  the  jiower  of  the  legislature  to  pass  an  act  which  suspends  the  rem- 
edy upon  the  contract,  provided  it  does  not  impair  the  ultimate  liability.  Stock- 
ing v.  Hunt,  3  Denio,  274;  Wolf  kill  v.  Mason,  G  Abb.  Pr.  H.  221;  Sullivan  v. 
Brewster,  1  E.  D.  Smith,  C81;  Miller  v.  Moore,  id.  G30.  And  when  the  object  of 
a  statute  is  to  correct  an  abuse,  it  is  remedial,  and  the  intent  of  the  legislature  may 
be  gathered  from  cotemporaneous  circumstances  ;  and  these  should  govern  in 
case  of  ambiguity.  Fairchild  v.  Gwynn,  16  Abbot  Pr.  E.  31.  But  even  remedial 
statutes  are  to  be  deemed  prospective  in  their  operation,  and  are  not  to  be  applied 
to  proceedings  pending  at  the  time  of  their  enactment,  unless  a  contrary  intent 
appears.  Trist  v.  Cabenas,  18  Abb.  Pr.  143.  See  Litch  v.  Brotherson,  2-')  How. 
Pr.  E.  41 C,  and  cases  there  cited. 

The  act  exempting  certain  property  from  levy  by  execution,  to  satisfy  debts 
contracted  before  its  passage,  is  an  ex  post  facio  law,  and  is  in  conflict  with  the 
constitution  of  the  United  htatcs.  Morse  v.  Gould,  11  N.  Y.  E.  281;  (overruling 
Danks  v.  Quackcnbu;,h,  1  id.  129);  Euc  v.  Alter,  5  Denio,  119. 


RETBOSPECTR'E   STATUTES.  165 

been,  an  existing  rule  governing  snc-h  Ji  transaction;  it  Avould  not 
then  be,  in  that  case,  ainle  of  civil  conJuct.  The  conduct  of  the 
past  nni8t  stand  acquitted  or  condemned;  be  hnvful  or  unhuvful 
when  judged  by  rules  -which  had  existence,  at  the  time  the  trans- 
action took  place.  It  -would  be  monstrous,  -were  it  otherwise. 
The  future  alone,  can  bo  called  upon  to  observe  the  dictates  of 
ne-w  rules.  It  has  been  justly  said,  "To  establish  a  rule  by  -which 
a  person  should  be  required  to  shape  his  jx'^f  conduct,  -would  be 
to  legislate  an  ohs/inlif// ;  to  grant  -wliat  -would  be  an  utter  ijiipos- 
sibihty."  a 

"But  retrospective  laws  are  not  only  inconsistent  v/ith  the  idea 
of  a  la-w  as  a  rule  of  civil  conduct,  but  they  are  in  many  instan- 
ces, only  the  exercise  of  powers  which  are  in  their  nature  strictly 
judicial,  instead  of  legislative.  Such  laAvs,  when  they  are  only 
such,  look  not  upon  the  futiu'e,  but  upon  the  past :  or  in  other 

a  Smith's  Com  291. 

Where  au  amendment  of  a  statute  is  made  Ly  dechiriug  it  shall  be  amended  so 
as  to  read  ju  a  given  way,  the  amondmeut  has  no  retroactive  lorce  ;  the  new  pro- 
vision is  to  be  iinderstood  as  taking  effect  at  the  time  the  amended  act  would 
otherwise  become  the  law.     Ely  v.  Holton,  15  N.  Y.  E.  595. 

The  Supreme  Court  of  the  United  States,  I  think,  have  drawn  a  distinction, 
which  may  be  regarded  as  the  rule  both  in  England  and  this  country,  (except  in 
States  that  have  adopted  a  constitutional  provision  prohibitory  of  such  laws,) 
which  is  as  follows  :  "  Ectrospcctive  law-s,  which  do  not  imi:)air  the  obligation  ot 
contracts,  or  partake  of  the  character  of  ex  post  facto  laws,  are  not  condemned  or 
forbidden  by  any  part  of  the  constitution  of  the  United  States."  Satterlee  v. 
Mathewson,  2  Peters,  380. 

For  the  adjudications  upon  this  subject,  in  other  States,  which  are  in  harmony 
with  the  cases  above  cited,  see  :  In  Pennsylvania,  IMcCabe  v.  Emerson,  G  Har. 
Penn,  111. 

In  Maine,  Proprietors  of  Kennebec  Purchase  v.  Laboree  and  others,  2  Green  R. 
275;  Oriental  Bank  v.  Freese,  18  Maine,  109;  Aiisten  v.  Stevens,  24  id.  520;  Web- 
ster V.  Cooper,  M  How.  U.  S.  11-  504. 

In  Vermont,  Wires  v.  Farr,  25  Vermont  -41. 

In  Connecticut,  Plumb  v.  Lawyer,  21  Conn.  351. 

In  Massachusetts,  Walter  v.  Bacon,  8  Mass-  4G8;  Davison  v.  Johonnot,  7  Sltt. 
389;  Patterson  v.  Philbrook,  9  Mass.  151;  Locke  v.  Dane,  id.  360;  Calder  v.  Bull, 
3  Ball.  391. 

In  Mississippi,  Boyd  v.  Barrenger,  23  Miss.  270;  Garrett  v.  Beaumont,  21  id. 
377;  Murray  v.  Gibson,  15  How.  U.  S.  E.  431. 

In  Ohio,  Trustees  of  Cuyahoga  v.  McKaughcy,  22  Ohio  St.  E.  152,  and  cases 
there  cited. 

But  in  drawing;  the  precise  line  between  cases  that  interfere  with  vested  i-ights, 


16G  EETKOSrECTIVE   STATUTES. 

woicls,  pionoimce  judgment  upon  acts  clone  antecedent  to  their 
adoption  ;  and.  in  this  respect,  assnnie  a  judicial  power,  as  contra- 
distinguished, from  what  is  strictly  legislative  power.  They  assume 
to  give  character  to  facts  which  they  did  not  possess  at  the  time 
they  took  place,  and  then  to  judge  of  them  in  the  new  character 
thus  legislatively  created  for  them ;  to  settle  in  some  instances, 
old  rights  depending  on  laws  as  they  existed  before  the  act  was 
passed,  by  new  principles  created  and  applied  by  the  retrospec- 
II  »c  act  having  no  existence  antecedent  to  the  time  of  its  passage, 
which  then,  and  not  till  then,  sprang  into  being." 

But  it  is  not  intended  to  lay  down  the  proposition  that  the  leg- 
islature cannot  under  any  circumstances  pass  a  mere  remedial 

and  cases  that  cTo  not,  the  authorities  are  abundant,  and  not  entirely  in  harmony; 
some  of  the  States  having  constitutional  provisions  and  regulations  in  this  res- 
pect, and  others  not,  and  it  is  not  deemed  to  be  within  the  scope  of  this  work,  to 
i-eview  the  adjudication,  and  give  the  various  reasons  which  have  controlled  the 
courts  in  this  regard. 

It  is,  however,  a  fair  conclusion  from  the  view  of  all  the  cases,  to  hold  and  say, 
that  the  legislatures  of  the  several  States,  have  power,  excej^t  where  i^rohibitedby 
the  local  constitutions,  to  enact  retrospective  statutes  in  certain  cases  ;  and  it 
belongs  to  the  courts  to  determine,  whether  such  acts  come  within  the  spirit  of 
the  constitution  which  limits  the  legislative  power,  and  whether  a  retroactive 
effect  of  such  statute,  interferes  with  vested  rights.  That  all  doubtful  provisions 
of  legislative  enactment  arc  for  the  judiciary  to  expound  and  to  interpret,  is  no 
longer  an  open  question. 

A  good  illustration  of  this  question  arose  directly,  in  this  State,  ^^pon  the  stat- 
utes of  1848  and  1849,  for  the  more  effectual  protection  of  the  property  of  married 
women,  which  declared  that  the  real  and  personal  property  of  any  female  then 
married,  should  be  her  sole  and  separate  property.  A  legacy  had  been  bequeath- 
ed to  a  married  woman,  and  the  testator  had  died  before  the  passing  of  those 
statutes,  but  the  legacy  had  not  been  reduced  to  i^ossession  before  that  act  took 
effect.  The  question  presented  was,  to  whom  this  legacy  belonged,  whether  to 
the  husband,  or  the  wife.  Denio,  J.  said,  "The  application  of  this  statute  to 
this  case,  would  be  a  violation  of  the  constitution  of  this  State,  which  declares, 
"  that  no  person  shall  be  deprived  of  life,  liberty  or  property  without  due  process 
of  law."  (Const.  Ai't.  1,  §  6.)  Before  the  act  of  1848  took  effect  the  husband  had 
a  right  to  this  legacy,  subject  to  certain  contingencies  which  had  not  haiDpened. 
By  the  terms  of  that  act  this  legacy  belonged  to  the  wife,  and  it  was  held  that  the 
legislature  had  not  the  constitutional  right  to  d(>prive  the  husband  of  this  legacy. 
Westervelt  v.  Gregg,  12  N.  Y.  202. 

This  case  perhaps,  as  well  as  any  other,  expresses  the  spirit  of  the  multitude  of 
adjudications  in  which  it  is  held  that  a  statute  a  cannot  have  retroaction  upon 
vested  rights. 

Every  statute  M-hich  takes  away  or  imjiairs  a  vested  right,  required  under  pre- 


EX   POST   FACTO    LAWS.  1G7 

act,  wliich  iu  its  effect,  or  by  Avay  of  definitjoi),  may  have  a  retro- 
active operation  by  way  of  relation  to  past  events.  Such  acts  of 
legislation  as  we  have  stated,  when  limited  within  the  approp- 
riate sphere,  may,  undoubtedly,  be  within  the  legislative  power, 
and  such  acts  have  received  judicial  sanctiou. 

It  is  sometimes  difficult  to  distii)guisli,  if  really  there  be  any 
distinction,  between  retrospective,  and  ex  i^at  fado  laws,  except 
that  the  constitution  expressly  prohibits  the  latter,  and  if  the 
former  are  not  inhibited,  it  is  because  there  is  a  hair  splitting 
difference,  most  difficult  to  define.  In  a  general,  literal  sense,  an 
ex  iMst  facto  law,  is  one  passed  in  regard  to  an  act,  after  the  act  is 
done ;  but  in  its  most  comprehensive  definition,  it  includes  all 
retrospective  laws,  or  laws  governing  or  controlhng  past  transac- 
tions, whether  they  are  of  a  civil  or  criminal  nature.  Laws,  how- 
ever, which  mitigate  the  character  or  punishment  of  a  crime  al- 
ready committed,  though  retrospective,  may  not  fall  within  the 
prohibition  of  the  constitution,  for  the}-  are  in  favor  of  the  citizen. 
Ex  post  facto  laws,  it  is  held,  relate  only  to  penal  and  criminial 
proceedings,  and  not  to  civil  proceedings  which  affect  private 
rights  retrospectively.a  This  is  claimed  to  be  the  distinction. 
So  that  by  this  distinction,  all  acts  legalizing  past  proceedings  ; 
all  acts  of  relief,  or  pardon,  or  indemnity ;  all  acts  that  mitigate  the 
malignity  of  an  offence,  or  modify  tlie  rigor  of  the  criminal  law, 
though  retrospective;  are  not  in  the  constitutional  sense  ex  post/ado. 
a  Dash  v.  Yau  Kleck,  7  Jobu.  477. 

vious  laws,  is  retrospective  and  objectionable  on  that  gronnd.  Davis  v.  OTarrell, 
4  Greene  (Iowa)  1G8. 

An  act  releasing  a  portion  of  the  dxities  on  prize  goods  captured  by  private 
armed  vessels,  was  held  not  to  apply  to  captures  previous  to  its  passage,  though 
the  condemnation  took  place  subsequentlj-.  Prince  v.  U.  S.  2  Gall.  204.  So  a 
statiite  concerning  the  effect  of  wills  upon  after  acquired  lands,  was  held  not  to 
apply  to  a  will  previously  executed,  the  testator  having  died  subsequently.  Car- 
rol v.  Carrol,  IG  Howard,  275. 

A  statute  limiting  suits  on  foreign  judgments,  was  held  not  to  apply  to  judg- 
ments recovered  before  its  passage.     Murray  v.  Gibson,  15  How.  421. 

A  statute  making  valid  a  certificate  of  a  proof  of  a  deed,  after  a  decree  rendered 
iu  a  court  of  equity,  is  void  ;  it  cannot  change  the  then  existing  rights  of  the  par- 
ties.   Garrett  v.  Stockton,  7  Humph.  84. 

Although  the  remedy  of  a  party  to  a  contract  may  be  modified  by  subsequent 
statutes,  yet  a  statute  which  takes  away  all  remedy  impairs  its  obligation.  Bruce 
V.  Schuyler,  4  Gilra.  221. 


168  EX  rOST  FACTO  LAWS. 

Justice  Cliasc  divides  qx  jjost  fado  laws  into  four  classes,  a 
1st.  Eveij  law  that  makes  an  action  done  before  tlie  passing  of 
a  law,  and  wliicli  Avas  innocent  when  done  criminal,  and  punishes 
the  action.  2d,  Every  law  that  aggravates  a  crime,  or  that  makes 
it  greater  than  it  was  when  committed.  3d,  Every  law  that 
changes  the  punishment,  and  inflicts  a  greater  ]ounishment  than 
the  law  annexed  to  the  crime  when  committed.  4th,  Every  law 
that  alters  the  legal  rules  of  evidence,  and  receives  less  or  dif- 
ferent testimony  than  the  law  required  at  the  time  of  the  com- 
mission of  the  offence  in  order  to  convict  the  offender. 

The  provisions  of  the  second  article  of  the  new  constitution  of 
Missouri,  which  forbid  any  priest  or  clergj^man  from  teaching  or 
preaching,  unless  he  shall  first  take  "the  oath  of  loyalty"  declar- 
ing that  he  has  never  been  in  armed  hostility  to  the  United  States 
&c,  &c,  that  he  has  never  by  act  or  word  manifested  his  adherence 
to  the  cause  of  the  enemies  of  the  United  States,  or  his  desire 
for  their  triumph  ;  or  his  sympathy  with  those  engaged  in  rebel- 
lion ;  that  he  has  never  come  into  or  left  the  state  for  the  purpose 
of  avoiding  enrolment  or  di-aft  into  the  military  service ;  was  held, 
to  be  in  effect  a  bill  of  attainder,  and  ex  jjost  facto  law.  h  So  too, 
the  act  of  congress  of  2d  July,  18G2,  providing  that  after  its  passage 
no  person  should  be  admitted  to  the  bar  of  the  Supreme  Court  of 
the  United  States,  or,  after  a  certain  day  specified,  to  the  bar  of 
any  circuit  or  district  court,  or  of  the  court  of  claims,  as  an 
attorney  or  counsellor,  without  having  first  taken  the  oath  prescrib- 
ed in  said  act,  declaring  that  the  deponent  has  never  voluntarily 
borne  arms  against  the  United  States  since  he  has  been  a  citizen 
thereof;  that  he  has  not  given  aid,  &c.,  to  persons  engaged  in 
armed  hostility  thereto  ;  or  sought  to  exercise  any  office  in  hostility 
thereto,  or  yielding  a  voluntary  support  to  any  pretended  govern- 
ment within,  and  hostile  to  the  United  States,  &c,  is  within  the 
prohibition  of  the  constitution  against  bills  of  attainder,  and  <x 
postjacfo.  c 

But  the  following  cases,  which  are  put  in  books,  may  certainly 
happen  in  practice  :  A  man  may  covenant  not  to  do  an  act  which 
is  lawful,  and  a  statu'.e  may  be  afterv/ards  made  which  compels 

a  Calder  v.  Bull,  3  Dall.  38G.  h  Cummiiigs  v.  Missouri  4  Wall.  277. 

cExparte,  Garland,  id.  333. 


TIMLl   OF   STATUTES  TAKING  EF^CT.  169 

him  to  do  the  act :  or,  a  man  may  covenant  to  do  an  act  wliicli  is 
lawful,  and  by  a  statute  made  afterwards,  he  may  be  forbidden  to 
do  the  act ;  in  both  these  cases  it  has  been  said,  the  statute  re- 
peals (or  rescinds)  the  covenant,  a  But  this  doctrine  has  been 
impugned  in  a  latter  case,  where  it  was  held  that  the  sense  of  the 
words  of  a  statute  passed  subsequently,  ought  not  to  be  strained, 
so  as  to  avoid  th(5  contract ;  to  the  benefit  whereof  some  person 
was  entitled,  at  the  time  the  statute  was  made.  />  And  in  an  ac- 
tion for  a  penalty,  where  the  defendant  had  jjaid  the  duties  under 
a  new  act  discharging  the  pcnialty  on  such  payment  by  a  given 
day.  Lord  Manslicld  said  :  "Here  is  a  right  vested,  and  it  is  not 
to  be  imagined  that  the  Legislature  could  by  general  words  take 
it  away  ;  they  certainly  meant  future  actions."  c 

But  these  cases  (actual  or  suppositious)  do  not  apply,  where,  in 
order  to  prevent  the  mischief  there  contemplated,  the  statute  gives 
due  notice  that  the  law  shall  not  have  any  Operation  till  after  a 
definite  and  extended  period,  and  time  is  given  to  bring  their  ac- 
tions previously  to  its  commg  into  operation.  On  this  ground 
Fowler  and  Chatterton  was  decided.  There  the  plaintiif  sued  in 
Hilary  term,  18-0,  on  a  debt  accrued  six  years  before  :  held  that 
the  9  Geo.  4,  c.  14,  which  came  into  operation  on  January  1,  1829, 
precluded  him  from  recovering  on  an  oral  promise  to  pay  the  debt 
made  by  defendant  in  Febuary,  1828  ;  d  because  the  operation  of 
that  act  was  postponed  to  give  persons  time  to  bring  their  actions. 

The  rule  formerly  v/as,  that  when  the  commencement  of  an  act 
was  not  directed  to  be  from  any  particular  time,  it  took  effect 
from  the  fn-st  'day  of  the  session  in  which  the  act  was  passed  ; 
which  might  bo  weeks,  if  not  months,  before  the  act  received  the 
royal  sanction,  or  even  before  the  bill  was  brought  into  parlia- 
ment. This  was  an  extraordinary  instance  of  the  doctrme  of 
relation  working  gross  injustice,  as  well  asbeing full  of  absurdity. 
Yet  the  rule  was  plainly  declared  as  early  as  the  time  of  Henry 
VI,  e  and  uniformly  adhered  to,  though  the  consequence  of  it,  was 
sometimes,  to  render  an  act  mui'der,  which  would  not  have  been 
so  without  such  relation./'  The  case  of  the  Attorney  General  v. 
Panter  is  a  strong  instance  of  the  application  of  this  rigorous  and 
unjust  rale  of  the  common  law,  even  at  so  late  a  period  as  the 
year  1772.  An  act  for  laying  a  duty  on  the  exportation  of  rice, 
ihereafter  to  he  exported,  received  the  royal  assent  on  the  29th  of 
June,  1767,  and  on  the  10th  of  June  of  that  year,  the  defendants 
had  exported  rice.  After  the  act  passed,  a  duty  was  demanded  upoii 
the  prior  exportation,  and  it  was  adjudged,  in  the  Irish  Court  of 
Exchequer,  to  be  payable.  The  cause  Avas  carried  by  appeal  to 
the  British  House  of  Lords,  on  the  ground  of  the  palpable  injus- 

a  Salk.  19S.  h  Lord  Eavmoud,  1352. 

c  4  Burr,  2-i60.  d  6  Bing.  258. 

e  33  H.  6,  18;  Bro.  33.  /I  Lev.  91. 
29 


170  TIME   OF   STATUTES  TAKING  EFFECT. 

tice  of  punisliing  the  party  ior  an  act  innocent  and  lawful  when  it 
was  done  ;  but  the  decree  was  affirmed  upon  the  opinion  of  the 
twelve  judges,  tliat  the  statute  by  legal  relation  commenced  from 
the  tirst  day  of  the  session,  a  So,  in  the  case  of  Latless  v.  Homes,r/ 
the  judges  held  that  they  could  not  take  notice  of  the  great  hard- 
ship of  the  case.  The  rule,  indeed,  was  so  firmly  settled,  ai;d 
sanctioned  by  so  many  decisions,  as  to  require  the  interference  ol 
the  legislature  to  control  it.  Accordingly  the  stat,  33  Geo.  3,  c. 
13,  enacts,  that  the  clerk  of  the  parliament  shall  endorse  on  every 
act  the  time  it  receives  the  royal  assent,  which  shall  be  the  date 
of  its  commencement,  where  no  other  is  provided;  thus  abolishing 
the  ancient  rule,  as  liable  to  produce  manifest  injustice,  c  and  sub- 
stituting another  rule  designed  to  prevent  the  mischief  that  a 
statute  should,  by  any  fiction,  or  relation,  have  any  effect  before 
it  was  actually  passed. 

Although  in  an  act  of  parliament,  it  is  expressly  enacted  that 
it  shall  commence  and  take  efi'ect  from  a  day  named,  yet  if  the 
royal  assent  be  not  obtained  until  a  day  subsequent,  the  provis- 
ions of  a  particular  section,  in  its  terms  prospective,  do  not  take 
effect  till  subsequent  day.  d  In  Eex  v.  Justices  of  Middlesex,  p 
two  acts  of  parliament  which  passed  during  the  same  session,  and 
were  to  come  into  operation  on  the  same  day,  were  repugnant  to 
each  other,  and  the  question  was  which  was  to  take  effect.  (The 
case  of  the  Attorney  General  v.  The  Chelsea  Water  Works  com- 
pany was  cited  from  2  Dwarris  on  Statutes,  675,)  Lord  Tenterden 
said,  "  We  are  of  opinion  that  the  act  which  last  received 
the  royal  assent  must  prevail.  Our  decision  is  conformable 
with  the  doctrine  laid  down  in  the  case  cited.  There  it  was 
resolved,  that  where  the  proviso  of  an  act  of  parliament  is 
directly  repugnant  to  the  provision  of  it,  the  proviso  shall  stand, 
and  be  held  a  repeal  of  the  purview,  as  it  speaks  the  last 
intention  of  the  makers.  At  the  time  that  resolution  was  come 
to,  it  was  not  possible  to  know  which  of  the  two  acts,  passed  in 
the  same  session,  received  the  royal  assent  first ;  for  there  was 
then  no  endorsement  on  the  roll,  of  the  day  on  which  bills  received 
the  royal  assent ;  and  all  acts  passed  in  the  same  session,  were 
considered  as  having  received  the  royal  assent  on  the  same  day, 
and  were  referred  to  the  first  day  of  the  session.  Now,  however, 
it  is  known  on  what  day  each  bill  receives  the  royal  assent  by  the 
provisions  of  stat.  33,  Geo.  3,  ch.  13. 

There  is  nevertheless  some,  and  that  not  inconsiderable  hard- 
ship in  the  rule  as  it  now  stands  ;  for  a  statute  is  to  operate  from 
the  very  day  it  passes,  if  the  law  itself  does  not  appoint  the  time. 

a  Attorney  General  v.  Panter,  G  Bro.  A.  C.  553.  6  4  T.  E.  G60. 

c  Words  of  preamble  to  33  Geo.  3,  c.  13. 

d  Barn  v.  Oavallo,  (in  error)  4  Nev.  &  M.  803. 

e  2  B  &  A.  S18,  2  Bing,  N,  D,  682, 


TIME  OF  STATUTES  TAKING  EFFECT.  171 

It  is  impossible,  in  the  distant  parts  of  the  United  Kingdom,  to 
have  notice  of  tlie  existence  of  the  hiw,  until  some  time  after  it 
has  passed  ;  and  in  America  in  the  wide  spread  dominion  of  the 
United  States,  "where  the  same  rule  is  adopted,  this  inconvenience 
is  strongly  felt,  a  It  Avould  be  no  more  than  reasonable,  that  the 
statute  should  not  be  deemed  to  operate  upon  the  persons  and 
property  of  individuals,  or  impose  pains  and  penalties  for  acts 
done  in  contravention  of  it,  till  such  time  had  elapsed  as  would 
enable  the  party,  Avith  proper  dihgence,  to  ascertain  the  existence 
of  a  law,  of  which  theri;  is  now  no  formal  promulgation  or  publi- 
cation,''•■  on  the  ])rincipl(!  of — "/>''  viotle  pr(Mjrcssif,r(iJc>de  en  roison 
dcs  dishniccs.'"  Tlu;  Cod(!  Napoleon,  after  much  discussion  and 
an  enlightened  consideration  of  the  whole  question,  adopted  the 
true  rule  :  It  declared  that  laws  were  binding  from  the  moment 
their  ])romulgatiou  could  be  known  :  and  that  the  promulgation 
should  be  considered  as  known  in  the  department  of  the  consular 
(afterwards  imperial)  residence  one  day  after  that  promulgation, 
and  in  each  of  the  departments  of  the  French  Empire,  after  the 
expiration  of  the  same  space  of  time,  augmented  by  as  many  days 
as  there  were  distanc(\s  of  tAV en ty  leagues  between  the  seat  of  gov- 
ernment and  the  place. — See  Conference du  Code  Civil,  Titre  Prelim- 
enaire :  de  Ja  puhlieedion,  des  cffets  and  de  rapj^tJieafion  dcs  lois  en 
general.  This  projet  Avas  three  times  revised  and  essentially  alte- 
red, the  first  Consul  taldng  an  actiA-e  and  intelligent  part  in  the 
deliberations.  On  the  lieduction  communique  au  Tribunal,  the 
I'olloAviug  Avere  some  of  the  "  Observations  du  Tribunat  :"  Cet  arti- 
cle donne  lieu  a  la  discussion  des  differents  modes  de  publication  des 
lois,  jjour  choiser  cclui  que  doit  etre  j9?'<;>/<?/'e.  Le  section  se  prononce 
pour  le  mode  progressif  ccdcule  en  reason  des  disiances.  Le  mode 
■progressifestfonde  sur  la  ncdure  :  ilfcmt  rcndre  la  hi  cxecidoire  au 
moment  ou  on  la  conncdt,  d'c — jjj).  19,  20. 

To  illustrate  the  inconsistency  of  our  doctrine  and  practice  :  A 
prisoner  was  indicted  for  maliciously  shooting ;  the  offence  was 
Avitliin  a  feAv  Aveeks  after  the  39  Geo.  4,  c.  37,  passed,  and  before 
notice  of  it  could  have  reached  the  j^lace  Avdiere  the  offence  was 
committed.  The  judges  thought  the  prisoner  could  not  have  been 
tried  if  that  statute  had  not  passed,  and  as  he  could  not  know  of 

a  R.  V.  Bailey,  E.  aud  E.  C.  C.  1;  1  Euss.  C.  aud  M.  109. 

*  "  Les  lois  ne  pouvent  ohliger  sans  etre  cnnnnes' ;  noits  7ious  sommes  occupes  deUi 
forme  de  leur  promithjation.  Elks  nepeuvent  etre  notifiees  a  chaque  Indivklu.  On  est 
^orce  de  se  contenter  d'une  puhllcUe  rclidive,  qui,  si  elle  ne  peid  produire  a  temps  dans 
clmque  cltoyen  la  connoisance  de  la  loi  a  laquelle  it  doit  se  conformer,  suffit  au  moins  pour 
prevenir  tout  arbitraire  sur  le  moment  ou  la  loi  doit  etre  executee." — Discours  prelimiuaire 
du  premier  projot  du  Code  Civil,  p,  30, 

In  Spain,  the  written  law,  "  that  is,  the  reading  (Jegenda)  in  which  there  exists 
{pace)  written  instruction  and  chastisement,"  is  not  oljligatory,  unless  published 
bv  proclamation  or  edict;  then  it  is  universally  binding,  because  all  are  bound  to 
know  or  study  it.— L.  4,  title  1,  part  1;  1,  12,  t  2,  lib.  3,  Xov.  Bee. 


172  TIME   OF   STATUTES   TAKING  EFFECT. 

that  act,  ulthongli  strictly  it  did  not  excuse  him,  they  thought  it 
right  that  he  should  have  a  pardon,  a 

Such  is  still  the  operation  of  the  ne^v  laic,  a  later  fact,  a  cir- 
cumstance of  matter  s;ibsequent,  the  law  does  not  allow  to  extend 
or  amplify  an  oli'ence,  "  though  laid  together  with  the  beginning, 
it  should  seem  to  draw  it  to  a  higher  nature."  (Estimatio  iwade- 
riti  delicti  ex  jMsfrcmo  facto  mmqiiam  crcseit.  "  The  law,"  says 
Bacon,  "  eonstnieth  neither  penal  laws  nor  penal  facts  by  intend- 
ment, so  as  to  be  aggi-avated  by  matter  subsequent ;  but  consid- 
ereth  the  offence  in  degree,  as  it  standeth  at  the  time  when  it  is 
committeth."*  Therefore,  if  a  man  deliver  goods  to  one  to  keep, 
and  after  retain  the  same  person  into  his  service,  who  afterwards 
goeth  away  with  his  goods,  this  is  no  felony  by  the  statute  21  H. 
8,  because  he  was  no  servant  at  that  time."  h 

An  act  of  parliament  made  to  correct  an  eri'or  by  omission  in 
a  former  statute  of  the  same  session,  relates  back  to  the  time 
when  the  first  act  passed,  and  the  two  must  be  taken  together,  as 
if  they  were  one  and  the  same  act,  and  the  first  must  be  read  as 
contaming  in  itself,  in  Avords,  the  amendment  supplied  by  the 
last ;  therefore,  goods  exported  before  the  second  act  passed,  but 
only  shipped  on  hoeoxl  before  the  first  passed,  were  held  liable  to 
duties  subsecpiently  imposed  on  the  exportaiion  of  goods.  A  case 
certainly  of  extreme  hardship ;  and  admitted  by  the  then  Chief 
Baron,  c  to  resemble  the  Attorney  General  v.  Panter,  which,  he 
added,  notwithstanding  its  hardship,  is  certainly  good  law.  d.  But 
then  it  should  be  remembered  that  the  provoking  injustice  of  the 
former  case  occasioned  that  law,  however  "  good,"  to  be  altered. 
The  relation  in  bankruptcy  has  been  greatly  curtailed  in  its  extent 
and  operation  ;  e  the  relation  of  statutes,  though  restrained  by  the 
33  Geo.  3,  c.  13,  is  still  capable  of  working  extensive  mischief  and 
injustice.  The  mischief,  however,  is  greatly  ob\dated,  as  was  be- 
fore observed,  where  the  .statute  provides  that  the  law  shall  not 
have  any  operation  till  after  a  definite  and  extended  period  ;  as 
was  the  case  with  the  stat.  9  Geo.  4,  c.  14,  commonly  called  Lord 
Tenterden's  act,  and  the  stat.  1  Wm.  4,  c.  70,  for  the  more  effec- 
tual administration  of  justice  in  England  and  Wales. 

a  Bacon's  Maxims,  39,  40.  h  Thompson,  C.  B. 

c  Atty  General  V,  Pougett,  2  Price  381.  d  Eden's  Bankrupt  Law,  2G0. 

e  Fowler  v.  Chatterton,  6  Bing.  203. 

Note  10. — A  statute  wliich  imposes  a  punishment  for  acts  sf)ecifie(l,  which  were 
not,  or  may  not  have  been  punishable  when  the  acts  were  committed,  and  for  all 
acts  that  add  new  punishment  is  within  the  constitutional  inhibition  against  the 
passage  of  C.T  pos<  /ac/o  laws.  Matter  of  A.  H.  Garland,  32  How.  U.  S.  E.  241.  So 
also,  a  law  which  makes  an  act  punishable  in  a  manner  in  which  it  was  not  pun- 
ishable when  committed,  or  which  increases  the  original  punishment,  is  ex  pos' 
fado  and  void.     Shepherd  v.  The  People,  25  N.  Y.  406. 


TIME  OF  STATUTES  TAKING  EFFECT.  i73 

By  stat.  48  Geo.  4,  c.  13G,  uliere  any  bill  shall  be  introduced 
into  any  session  of  parliament,  for  the  continuance  of  any  act 
■which  Avould  expire  in  such  session,  and  such  act  shaU  have  ex- 
pired before  the  bill  for  continuing  the  same  shall  have  received 
tlie  nnal  assent,  sucli  continuing  act  shall  be  deemed  to  have 
etlect  from  the  date  of  the  ex])iration  of  the  act  intended  to  be 
continued,  except  it  shall  be  ot]ler^vise  provided  in  such  continu- 
ing act.  But  nothing  therein  contained  shall  extend  to  allect 
such  person  with  any  punishment,  })enalty,  or  forfeiture,  by  reason 
of  anything  done  contrary  to  the  provisions  of  the  act  continued, 
between  the  expiration  of  the  same,  and  the  date  at  which  that 
continuing  the  same  shall  receive  the  royal  assent. 


L7  4  KULES   OF  INTERPRETATION. 


CHAPTER  VII. 


GENERAL,  QUALIFIED  AND  PARTICULAR  RULES  RELATING  TO  THE 
CONSTRUCTION  OF  STATUTES. 

Having  enumerated  the  various  kinds  of  acts  of  Parliament 
and  distributed  them  according  to  the  most  received  and  most 
satisfactory  division  of  statutes,— having  investigated  minutely 
their  nature,  form,  parts,  qualities,  authority,  and  relation, — it  is 
next  proposed  to  consider  the  rules  for  their  interpretation. 

The  rules  of  exposition  as  to  grants  and  pleadings,  that  "  Verba 
fortius  accipiurdur  contra  j^ro/ere^ifcm  /"  "  Ver/,a  aliquid  operari  de- 
bent  ;"  "  Verba  cum  effectu  sunt  accifyienda  ;'  Divinatio  non  interprc- 
fatio  est,  quce  omnino  recedit  a  litera,''  d'c. ,  are  rules  which  have  no 
place  at  all  a  in  acts  of  Parhament,  which  are  not  icords  of  joarties  : 
neither  in  devises  and  wills,  upon  several  reasons.  Words  of  par- 
ties in  deeds  or  grants  are  taken  most  strongly  against  the  con- 
tractor, because  men  are  supposed  sufficiently  careful  not  to  pre- 
judice their  own  interests  by  the  too  extensive  meaning  of  their 
words.  Acts  of  Parhament  are  not  within  the  reason  of  the  rales. 
The  case  is  the  same  wdth  some  of  the  reasons  for  those  maxims 
which  obtain  with  respect  to  wills.  It  is  said  that  the  last  will  of 
a  party  is  to  be  favorably  construed,  because  the  testator  is  inop'ri 
consilii.  "This  we  cannot  say  of  the  legislature,"  obserbed  Lord 
Tenterden,  (when  lamenting  that  the  last  bankrupt  act- should 
have  been  framed  with  so  little  attention  to  the  consequences  of 
of  some  of  its  provisions,)  "but  we  may  say  that  it  is  'rnarjnas 
inter  opes  inops'  "  h 

The  constraction  of  a  statute  indeed,  like  the  operation  of  a 
devise,  depends  upon  the  apparent  intention  of  the  maker,  to  be 
collected  either  from  the  particular  provision  or  the  general  con- 
text ;  acts  of  Parhament  and  wills  ought  to  be  alike  construed, 
according  to  the  intentions  of  the  parties  that  make  them  ;  so  far, 
instead  of  a  dissimilarity,  there  is  a  resemblance. 

The  rules  before  mentioned  being  rules  of  some  strictness  and 
i-igour,  are  qualified  by  other  rules  of  more  ecpity  and  Immanity ; 
as  that  "  Verba  generalia  restringuntur  ad,  iLubilitatem  personce  vel,  ad 
aptitudinem  rei  ;"  "  Verba  ita  sunt  intelligenda  ut  res  magnus  valeat 
guam  pereat .-"  "Ea  est  accipienda  interpret atio,  qiice  vitio  careat ;" 
(i.  e.  which  does  not  intend  a  wrong,)  and  these  latter  and  more 

a  Bacon's  Maxims,  01.  &  9  B.  .t  C   738. 


RULES   OF   INTERrRETATION.  176 

beuiguant  rules  of  constniction  seem  to  admit  a  more  extended 
api)lication.  "  For  all  words,"  says  Lord  Bacon,  "  whether  they  be 
in  deeds  or  statutes,  or  otherwise,  if  they  be  general,  and  not  ex- 
[)ress  or  precise,  shall  be  restruined  unto  the  fitness  of  the  matter 
ov  person."  As  in  the  statute;  of  wrecks,  the  provision  that  goods 
ivrecked,  if  any  live  domestic  ci-euture  remains  in  a  vessel,  shall 
be  preserved  to  the  use  of  the  owner  who  shall  make  his  claim 
within  the  space  of  a  year,  doth  not  extend  to  fresh  victuals  or 
perishable  commodities ;  for,  "in  these  and  like  cases,  general 
words  may  be  taken  to  a  foreign  intent,  but  never  to  an  unreason- 
able, or  impertinent,  or  repugnant  intent. "a 

No  doubt  certain  fundamental  rules  founded  u})on  the  universal 
])rineiples  of  criticism,  and  the  grammatical  sense  and  meaning  of 
words,  must  be  alike,  applica])le  to  the  exposition  of  deeds, grants 
and  other  written  instruments,  and  to  the  construction  of  wills  and 
statutes. 

But  the  philosophical  inquirer  into  the  theory  of  laws,  maj',  it 
lias  been  contended,  ascend  still  higher,  and  extend  his  views  be- 
yond the  most  comprehensive  canons  of  verbal  criticism.  "  It  is 
not  the  words  of  the  law,"  saj's  the  ancient  Plowdeu,  "  but  the  in- 
ternal sense  of  it,  that  makes  the  law :  the  letter  of  the  law  is  the 
body  ;  the  sensp  and  reason  of  the  law  is  the  soul."  A  Every  stat- 
ute ought  to  be  expounded,  not  according  to  the  letter,  but  accord- 
ing to  the  meaning :  qui  hcerct  in  litera,  hcx'ret  in  cortlce."  c  The 
enlarged  interpretation  of  a  law,  will  penetrate  the  soul  and  spirit 
ol"  a  law,  and  reach  the  intent  and  meaning  of  a  legislator. 

Is  it  then,  a  lex  Icr/nm,  a  geneval  rule  ;  an  universal  maxim  ;  that 
in  all  cases,  the  design  and  intent  of  the  fi'amcr,  when  it  can  be 
indisputably  ascertained,  shall  prevail:  quod  verha  inttutioui  in- 
.srrrire  ilcJtenf  ?  If  such  be  the  case,  as  a  maxim  of  universal  juris- 
prudence it  will  be  of  constant  application ;  it  will  extend,  under 
[>artial  motlilications,  to  the  interpretation  of  all  instruments ; 
wills,  deeds  and  grants,  equally  with  the  construction  of  statutes. 
The  subject  deserves  a  brief  and  compendious  examination,  and 
will  repay  inquiry ;  for  if  ascertained  to  be  well  founded,  it  estab- 
lishes a  principle;  it  ascends  to  causes;  "djjh'nius  et  mdias  cd 
}n'terc  foutes,  quani  sedari  rivulos.'"  If  the  doctrine  be  unsound, 
it  ought  to  be  exploded  ;  if  it  be  only  partially  true,  it  should  be 
([ualilied  ;  and  its  just  limits  require  to  be  discovered,  defined,  and 
ilistinguished. 

It  may  be  advanced  then,  as  a  proposition,  more  guarded  than 
the  alleged  governing  maxim — "the  intention  shall  prevail ;"  that 
efVect  ought  to  be  given  to  the  intention  of  the  parties  to  instru- 
ments,or  to  the  object,  spirit,  and  meaning  of  an  enactment. 

To  take  first,  the  case  of  a  will.     The  intention  of  a  testator,  it 

a  Bacon's  Maxims,  p  52.  h  Eystou  v.  Studd,  Plowd. 

c  11  Rep.  73. 


17G  EULES   OF  DsTERP;RETATION. 

is  always  held,  is  to  be  tlie  only  guide  iii  the  iuterpretation  of 
Ills  will ;  and  that  intention  when  it  can  be  ascertained,  must 
prevail.  "Where  the  words  used  in  a  will  were  "  all  my  personal 
estate,"  but  it  was  clear  the  testator  meant  to  give  the  real  prop- 
erty over  which  he  had  an  absolute  personal  ])ower  of  disposi- 
tion, the  freehold  has  passed  by  that  misdescription,  rt  So, 
where  it  clearly  appeared  a  testator's  intention  to  bequeath  his 
leaseholds  and  mere  chattel  interests,  under  the  description  of 
his  "  real  estates  ;"  such  intention  was  carried  into  effect,  b  Nay, 
where  the  intention  of  a  testator  is  clear  and  obvious,  it  has  been 
held  that  it  will  control  the  legal  operation  even  of  technical 
words. 

E  confra,  whore  the  words  of  a  will,  aided  by  evidence  of  the 
material  facts  of  the  case,  are  insufficient  to  determine  the  testa- 
tor's meaning,  the  wiU  will  be  void  for  uncertainty,  c 

In  the  construction  of  deeds  also,  although  tliej-e  greater  regu- 
larity and  strictness  are  required,  such  exposition  should,  if  pos- 
sible, be  made,  as  is  most  agreeable  to  the  intention  of  the 
grantor.  "  The  words,"  said  Chief  Justice  WiUs,  "  are  not  the 
principal  things  in  a  deed,  but  the  intent  and  design  of  the  grantor. 
These  are  the  rules  laid  down  by  PloAvdcn,  Coke,  and  Hale  ;  and 
the  law  commends  the  astidia  of  the  jiidges,  in  construing  the 
words  in  such  a  manner  as  shall  best  answer  the  intent."  d 
"  Those  judges,"  it  is  said  in  the  Earl  of  Clanricarde's  case,  "  are 
exceedingly  commended,  who  are  curious,  and  almost  subtlo^  to 
invent  reasons  and  means,  to  make  acts  according  to  the  just 
intent  of  the  parties."  e 

So,  in  the  construction  of  instruments  in  general,  if  the  mean- 
mg  can  be  coUected,  the  courts  will  give  full  effect  to  the  inten- 
tions of  the  parties.  And  any  words  by  which  the  intention  of 
the  parties  can  appear,  are  held  sufficient,  however  incorrect  and 
ungTammatically  expressed,  if  the  meaning  be  clear.  Thus, 
where  a  note  had  the  words  :  "  I  promise  not  to  pay,"  the  court 
held  it  be  a  promisory  note./  Where  the  condition,  of  the  bond, 
was  made  void  upon  certain  terms  by  the  words  of  the  condition, 
the  court  held  that  they  must  be  taken  in  the  same  sense,  as  if 
the  condition  had  been,  that  the  bond  itself  should  be  void.  <i 
Where  in  a  bargain  and  sale,  the  words  "  hath  granted"  were 
found  without  a  nominative  case,  the  court  supplie'd  the  grantor, 
and  this  holding  was  affirmed  in  the  House  of  Lords,  k     In  a 

a  11  East,  240  ;  IG  East,  221 ;  G  Ad.  &E.  1C7  ;  id.  180. 
h  1  Mylne  &K.  57l";  2  Euss.  &  M.  54G. 

c  "Wif^ram's  Apijlication  of  Extrinsic  Evidence  to  the  Interpretation  of  V.'llls, 
Proposition  G,  p.  83. 
d  In  Donne  v.  Parkhurst,  3  Atk.  13G. 

e  Hob.  277.  /Cayley  on  Bills,  p.  6. 

rf  2  Saoind.  78,  h  10  Mod.  40. 


QUALIFIED   INTERmETATION.  177 

recent  case,  the  court  supplied  after  the  word  "  thousand, "  the 
immensely  material  word  "pounds."  a 

I'J.  roidiu,  the  courts  have  constantly  rejected  clauses,  of  which 
they  were  unable  to  ascertain  the  meaning,  b  In  Doe  dem  Wynd- 
ham  V.  Carew,  Lord  Denman  said,  "  The  court  is  not  bound  to 
find  out  a  meaning  for  a  proviso  framed  as  this  is."  c  This  is, 
where  the  words  are  insensible,  and  the  purpose  cannot  be  col- 
lected. AVhere  the  real  intention  can  bo  ascertained  from  the 
context,  every  intendment  is  made  to  give  it  eftect. 

As  regards  contracts,  the  Digest  says,  "/?i  convention ihus,  con- 
trahcnliioii  voli'itlas,  'jxtlius  qnaiii  vcrha,  spedarijAacint.'"  d  "There 
are  certain  general  rules  t)f  interpretation,"  says  Story,  treating 
of  the  conflict  of  laws,  "  recognized  l)y  all  nations  ;  which  form 
the  basis  of  all  reasonings  on  the  subject  of  contracts.  The  ob- 
ject is  to  ascertain  the  real  intention  of  the  parties  in  their  stipu- 
lations ;  and  when  these  arc  silent  or  ambiguous,  to  ascertain 
what  is  the  true  sense  of  the  words  used,  and  what  ought  to  be 
implied,  in  order  to  give  them  their  true  force  and  efiect."  e 

If  the  full  and  entire  intention  of  the  parties  docs  not  appear 
from  the  words  of  the  contract,  and  if  the  contract  can  be  inter- 
preted by  any  custom  or  usage  of  the  place  where  it  is  made 
(custom  of  the  country)  that  course  is  to  he  adopted  :  "  Scqiiamur 
quod  in  rcgione,  in  qua  actum  est,  frcqiientur."  f  The  same  where 
it  can  be  construed  by  the  usage  of  trade,  g  Indeed  "  in  contrac- 
tibus  tacite  veniunt  ca,  quce  sunt  moris  ct  consuctudhus"  h  Thus  if 
a  tenant  is,  by  custom,  to  have  the  outgoing  or  waygoing  crop,_ 
he  will  bo  entitled  to  it,  although  not  expressed  in  the  lease,  i 
And  if  a  lease  bo  entirely  silent  as  to  the  time  of  the  tenant's 
quitting  the  premises,  the  custom  of  the  country  will  fix  it.,/ 

It  is  in  order  to  discover  the  intention,  and  then,  upon  the 
pratical  notion,  that  all  writings  tacitly  refer  to  the  existing  cii'- 
cumstances  under  which  they  are  made,  that.coiu'ts  of  law  admit 
evidence  of  particular  customs  and  usages  in  aid  of  the  interpre- 
tation of  written  instruments,  whether  ancient  or  modern,  when- 
ever from  the  nature  of  the  case  a  knoAvledgc  of  such  customs 
and  usages  is  necessary  to  a  right  understanding  of  the  instru- 
ment k.  The  law,  it  is  said,  is  not  so  unreasonable  as  to  deny  to 
tho  reader  of  any  instrument  the  same  light  which  the  writer  en- 
joyed. I 

a  8  B.  &  C.  5G8.  h  i  M.  &  S.  2Go. 

0  2  Q.  B.  Eep.  317.  d  Dig.  Lib.  50,  tit.  IG,  1.  219 
e  Story  on  Conflict  of  Laws,  22G.            /  Dig.  Lib.  50,  tit.  17,  1.  3-i. 
rj  Spiccr  V.  Cooper,  1  Q.  B.  Rep.  428. 

h  Totbier  Oblig.,  n.  95,  Merlin  Eepertorie  Couveutiou,  G7. 

i  Wigglcsworth  v.  Dallison,  Dougl.  Eep.  201,  207. 

j  Webb.  V.  Plomcr,  2  B.  Sc  A.  7-lG.  A;  1  Phill.  on  Evidence,  558. 

1  "Wigram,  Prop.  5,  pp.  02,  71. 

23 


178  QUiVLIFIED  INTEEPEETATION. 

It  is  on  the  same  ground,  tliat,  in  construing  a  will,  it  must 
always  be  remembered,  that  the  words  of  a  testator,  like  those 
of  every  other  person,  tacitly  refer  to  the  circumstances,  by  which 
at  the  time  of  expressing  himself,  he  his  surrounded.  Hence  it  is, 
that,  for  the  purpose  of  determining  the  object  of  a  testator's 
bounty,  or  the  subject  of  disposition,  or  the  quantity  of  interest 
intended  to  be  given  by  the  will,  a  court  may  inquire  into  every 
material  fact  relating  to  the  person  who  claims  to  be  interested 
under  the  will,  and  to  the  property  which  is  claimed  as  the  sub- 
ject of  disposition,  and  to  the  circumstances  of  the  testator,  and 
of  his  family  and  affairs.  But  still  the  object  and  governing 
principle  is  to  discover  the  intention,  with  all  aids. 

A  court  is  bound  to  apply  itself  with  all  diligence  and  attention 
to  find  the  meaning  of  a  testator,  if  it  can  possibly  be  found, 
however  difficult  and  obscure.  But  if,  after  every  effort  to  find 
that  meaning,  it  becomes  impossible  to  solve  the  difficulty  and 
dispel  the  obscurity  ;  if  no  judicial  certainty  can  be  obtained  of 
his  real  meaning,  then  the  court  is  not  to  supply  a  meaning  by 
conjecture,  or  to  adopt  an  arbitrary  meaning  for  the  purpose  of 
gi\ing  some  effect  to  unmeaning  and  ambiguous  clauses  a.  In  the 
words  of  Wigram,  V.  C,  in  his  admirable  work  on  Extrinsic  Evi- 
dence, "  the  court  is  not  to  allow  conjectural  interpretation  to 
usurp  the  place  of  judicial  exposition."  These  remarks  are  cited 
to  establish  and  to  iUustrate  the  general  rules  of  construction,  for 
they  will  be  found  equally  apj^licable  to  the  interpretation  of 
Btatutes. 

"  In  applying  rules  for  interpreting  statutes  to  questions  on  the 
effect  of  an  enactment,  Ave  can  never,  says  Vatell,  safely  lose  sight 
of  its  object.  That  must  be  the  truest  exposition  of  a  law,  which 
best  harmonises  with  its  design,  its  objects,  and  its  general  struc- 
ture." i 

To  a  quahfied  extent,  and  with  certain  restrictions  as  to  the 
use  of  astuteness  and  the  exercise  of  invention,  (which  had  better 
not  be  applied  to  acts  of  Parliament)  the  observations  before 
cited  as  to  the  construction  of  deeds  and  wills,  hold  good  in  the 
construction  of  statutes.  There,  also,  the  great  object  of  the 
mles  and  maxims  of  interpretation  is  to  discover  the  true  inten- 
tion of  the  law  ;  and  whenever  that  intention  can  be  indubitably 
ascertained  from  allowed  signs  and  by  admitted  means,  courts  are 
bound  to  give  it  effect,  whatever  may  be  their  opinion  of  its  wis- 
dom or  policy.  "Whatever  doubts  I  may  have  in  my  own  breast," 
said  Lord  Mansfield,  in  the  case  of  Pray  v.  Edie,  c  "  Avith  respect 
to  the  policy  and  expediency  of  this  law,  yet  as  long  as  it  continues 
in  force,  I  am  bound  to  see  it  executed  according  to  its  meaning ; 
and  however  I  may  think  that  this  is  not  a  commendable  defence 

a  Per  Lord  Abinger,  C.  B.  1  C,  M.  &  R. 

h  Vatell,  Ek.  2.  cb.  17,  §  285.  c  1  T.  K.  313, 


QUALIFIED  INl-ERrHETATION.  179 

iu  the  underwriter,  yd  tliat  is  a  laatter  for  his  coni5iderati(jn,  and 
not  for  mine.  Let  us  consider,  ^vhat  are  the  mischiefs  intended 
to  be  remedied,  and  the  provisions  of  the  act  for  remedying  them." 

The  real  intention,  too,  when  collected  with  certainty,  will  al- 
ways, in  statiites,  prevail  over  the  literal  sense  of  terms.  For 
"  every  statute  oufi;ht  to  be  expounded,  not  according  to  the  letter 
but  according  to  the  meaning."  a  When  the  stat.  18  Edw.  1,  (/ida 
ciiijh'orcfi  fcrraridn,  S:c.,  HnyH;  Everyman  shall  hold  of  the  lord 
irciYiimonut  sccmidnm  qncDitHalem  icrroi;  this  shall  be  consti-ued 
according  to  the  value,  ior  so  was  the  intent,  b  Hence,  too,  son 
fait  deme,s)ic  was  interjireted  son  fort  demesne ;  and  perdra  la  chose 
hath  ever  been  rendered  amif tot  locum,  c 

"Whenever  the  intention  which  the  makers  of  a  statute  enter- 
tained can  bo  discovered  by  tit  signs,  it  ought  to  be  followed  in 
its  construction,  in  a  course  consonant  to  reason  and  discretion." 
What  are  to  l)c  the  guides  in  such  course  will  lie  considered  here- 
after, \n\i  it  is  proposed  at  present,  to  state  and  to  illustrate  the 
subordinate  branches  of  tlie  general  rul(>. 

A  thing,  which  is  Avithin  the  object,  spirit,  and  meaning,  of  a  stat- 
ute, is  as  much  within  the  statute,  as  if  it  were  within  the  letter,  d ' 

a  Sec  post,  Stat.  Glonc.  cap.  5.  ?^  11  Ecp.  73. 

c  PI.  Com.  10u7  b.  d  Zoucli  and  Stowell,  Plow.  366  ;  10  Eep.  101. 

Note  1.-^  In  a  previous  chapter*  we  appended  by  -way  of  notes,  certain  gen- 
eral maxims  of  interpretation,  compiled  from  distinguished  and  acknowledged 
authors,  and  from  Americaii  judicial  authority.  It  is  seen,  that  the  present  chap- 
ter also  treats  somewhat  of  general  rules  of  interpretation,  as  well  as  such  as  are 
qualified  and  particular  ;  and  as  we  did  not  in  the  iirevious  notes  exhaust  the 
American  view  of  construction,  we  propose  to  follow  our  author  still  further  with 
our  general  rules,  as  well  as  such  as  are  qualified  and  particular. 

The  best  rule  by  which  to  arrive  at  the  meaning  and  intention  of  a  law,  is  to 
abide  by  the  words  which  the  lawmaker  hasiised.  U.  S.  v.  Bright,  Brightly,  R.  Q. 
same  V.  Warner,  5  McLean  ITS;  Nicholson  v.  U.  S.  Devercavix  C.  C.  E.  lo8.  If 
from  the  view  of  the  whole  law,  the  intent  is  diff"ereut  from  the  whole  literal  ini" 
port  of  some  of  its  terms,  the  intent  is  to  prevail.  Brown  v.  Wright,  1  Green,  2-10. 

Words,  in  a  statrite  are  never  to  be  construed  as  unmeaning,  and  surplusage  if 
a  construction  can  be  legitimately  found  which  will  give  force  to  and  preserve  all 
the  words  in  the  act.  Leversee  v.  Eeyuolds  13,  Iowa  310;  Hartford  Bridge  Co. 
V.  Union  Ferry,  29  Conn.  210. 

Doubtful  words,  if  not  scientific  or  technical,  are  to  be  interpreted  according 
to  their  familiar  iise  and  acceptation.  The  Fashion  v.  Ward  6  McLean  152. 
If  they  are  found  in  a  general  statute  they  may  be  construed  with  reference  to 
general  iisage  ;  and  when  a  statute  is  applicable  to  a  particular  place  only,  such 
doubtful  words  may  be  interpreted  by  the  i;sage  at  that  place.  Love  v.  Hinch- 
loy,  1  Abbott  430. 

In  the  construction  of  a  doubtful  law  the  cotemperaneous  constmction  of  per- 
sons appointed  to  execute  it,  is  entitled  to  great  respect.  Edward  v.  Darby,  12 
Wheat.  210  ;  XJ.  S.  v.  The  recorder,  1  Blatchford  C.  C.  E.  218. 

*  Chap.  5. 


ISO  QU^VLIFIED   INTEEPEETATION. 

By  the  4  H.  7,  c.  24,  it  is  provided,  that  the  right  of  a  person, 
who  was  -within  the  age  of  twenty-one  years  at  the  time  of  levy- 
ing a  line,  shall  not  be  thereby  bound  ;  yet,  if  the  disseissee  die, 
leaving  a  wiio  with  child,  and  the  disseissor  levy  a  fine,  and  after- 
wards the  ciiild  be  born,  the  child,  although  not  within  the  letter 
of  the  fttakite,  (because,  as  the  age  of  a  child  begins  only  from  its 
birth,  it  cannot  be  said  to  have  been,  at  the  time  the  fine  was 
levied,  tcithia  ihe  arje  of  i went y -one  years,)  is  within  the  meaning  ; 
and  his  right  sliall  be  saved. 

The  words  of  2  Westm.  2,  c.  23,  are  in  casu  quando  vir  amisitper 
defaltam  tenementum  quod  j'ldt  jus  uxoris  succ,  ctr.  Only  a  loss  by 
default  of  the  husband  is  within  the  letter  of  the  statute  ;  but  the 
construction  has  been,  a  that  a  woman  shall  have  a  right  of  cid 
in  vita,  although  the  loss  was  by  default  of  both  herself  and  hus- 
band ;  because,  as  she  is  presumed  to  have  acted  under  the  coer- 
cion of  her  husband,  this  case  is  within  the  intention  of  the  makers 
of  the  statute. 

The  stat.  35  Geo.  3,  c.  101,  gave  justices  jurisdiction  to  suspend 
an  order  of  removal  made  by  them,  on  account  of  sickness,  &c., 
of  the  pauper,  "in  case  any  poor  person  shall  be  brought  before 
them."  etc.,  the  object  of  which  remedial  law  would  have  been  en- 
tirely frustrated  by  a  literal  construction  of  the  words  of  it.  The 
court,  therefore,  gave  effect  to  the  plain  intention,  by  an  imdis- 
guised  departui-e'from  the  strict  letter  of  the  act,  and  construed 
tlie  words  to  mean  "  in  case  the  question  concerning  the  removal 
of  any  j)oor  person  shall  be  brought,  &c."  h 

A  thing  which  is  in  the  letter  of  a  statute,  is  not  within  the 
statute,  unless  it  be  within  the  intention  of  the  makers,  c 

The  statute  of  Maiibridge,  c.  4,  prohibits  generally  the  driving 
of  a  distress  taken  in  one  county,  into  another.  It  has  however 
been  adjudged,  that  if  land  holden  of  a  manor  in  one  county,  lie 
in  another  county,  the  lord  may  distrain  upon  the  land,  and  drive 
the  distress  into  the  county  where  the  manor  lies  ;  for  as  it  woiild 
be  inconvenient  and  a  great  loss  to  the  lord,  if  he  could  not  drive 
the  distress  to  his  manor,  d  this  case,  although  Avithin  the  letter, 
is  not  within  the  meaning  of  the  statute.  And  this  decision, 
further  considered,  will  every  way  be  supported,  as  agreeable  to 
right  reason.  For  the  tenant,  by  doing  suit  and  service  to  the 
manor,  knows  where  the  pound  i's,  to  give  his  beasts  sustenance  ; 
and  further  knows  where  to  have  his  replevy :  so  that  this  case 
is  out  of  the  mischief  intended  to  be  remedied. 

The  stat.  Westm.  2,  c.  12,  gave  damages  to  an  appeUee  upon 
his  acquittal ;  but  if  his  hfe  was  never  in  jeopardy,  (by  reason  of 
erroneous  process  or  otherwise),  held,  that  though  this  be  within 

a  Plo-n-den  57.  l>  Kexis  Evcrdon  5  Eust.,  11.  101, 

c  Bac.  Abr.  tit.  Statute  1.  d  2  Inst.  107. 


QUALIFIED    INTELrPiETATION.  181 

the  letter  of  the  law,  yet  it  is  out  of  the  meaning,  and  the  defend- 
ant shall  recover  no  damages,  a 

It  will  be  rememl)ered,  that  in  a  former  luirt  of  this  work,  under 
the  head  of  "  Clauses  how  controlled  l>y  clauses,"  "  Prior  Acts  by 
subsequent  acts,"  the  case  of  AViUiams  and  Pritchard  was  cited, 
to  this  etl'ect ;  that  where  it  is  manifestly  the  intention  of  the  leg- 
islature that  a  subsequent  act  of  parliament  shall  not  control  the 
provisions  of  a  former  act,  the  subsequent  act  shall  not  have  such 
operation,  even  though  tlie  words  of  it,  t:dven  strictly  and  gi-am- 
matically,  Avould  repeal  the  foinieraet.  -  Jn  Jiro.  Tit.  Purhament, 
52,  "where  a  statute  is,  that  the  merchant  shull  import  bullion  ol 
two  marks  for  eveiy  saek  of  wool  exported  ;  and  then  unother 
statute  was  made  that  the  merchant  should  not  be  charged  ex- 
cept for  the  ancient  custom,  this  does  not  repeal  the  first  statute. 
(Vide  Causain,  4  K  4,  12.)"  And  the  reason  is,  that  though  the 
words  would  have  that  operation  per  se,  it  clearly  was  not  the  in- 
tent of  the  legislature  that  the  act  should  have  that  efiect.  The 
principal  case  itself,  of  AVilhams  v.  Pritchard,  h  decided  that  the 
land-tax  act  27  Geo.  ;},  though  the  Avords  were  sufficiently  large 
for  the  purpose,  yet  should  not,  (because  it  could  not  have  been 
intended  that  it  should)  repeal  the  provisions  of  an  act  7  Geo.  o, 
which  exempted  certain  lands  embanked  from  the  Thames  fi'om 
land  tax.  t 

It  thus  manifestly  appears,  that  in  the  interpretation  of  all  in- 
struments, whether  wills,  deeds,  contracts  and  agreements,  oi 
statutes,  a  very  great  desire  is  felt,  and  constant  endeavors  used, 
to  ascertain  and  to  give  eit'ect  to,  the  intention  of  their  makers 
and  framers.  As  applied  to  the  construction  of  statutes,  the  doc- 
trine is  advisedly  not  enounced  in  the  terms  commonly  employed, 
that  "  the  intention  must  prevail."  For  over  what,  shall  it  be  said 
the  intention  is  to  prevail  ?  Over  the  declared  sense  of  the  legis- 
lature ?  The  presumed  meaning  over  the  expressed  sense  !  That 
is  siu-ely  impossible.  The  rule  will  it  is  apprehended,  be  more 
correctly  stated  in  the  guarded  terms  : — That  effect  shall  be  given 
to  the  intention,  whenever  such  intention  can  be  indubitably  as- 
certained by  permitted  legal  means. 

And  what  are  the  allowed  means,  the  recognized  signs,  by 
which  the  interpreters  of  statutes  are  to  explore  the  intentions  of 
the  legislature?  Suppose  it  gi-anted,  that  the  primary  object  of 
construction  is  to  ascertain  the  sense  and  intention  of  the  law- 

a  2  Inst.  386,  citing  9  H,  o,  2.  hi  T.  E.  2. 

Note  2. — An  alteration  in  the  phraseology,  or  the  omission  or  addition  of  words 
in  the  revision  of  statutes,  does  not  necessarily  alter  the  construction  of  the  act, 
or  imply  an  intention  to  do  so.  Such  intent,  must  be  evident,  or  the  change  in 
language  be  palpable,  before  the  courts  Mill  hold  the  coustructiou  to  be  changed 
Crowell  V.  Crane,  7  Barb.  191. 


182  QUALIFIED  INTEEPEETATION. 

maker,  and  the  spiiit  and  meaning  of  the  law,  it  remains  to  ascer- 
tain how  are  the  intention  and  meaning  to  be  collected. 

In  the  construction  of  a  will,  the  first  C[uestion  asked  is,  "What 
was  the  intention  of  the  testator  ?  The  second  must  ahvays  be  : 
Has  he  used  proper  language  to  carry  his  intentions  into  efiect  ? 
The  intention  of  a  testator,  is  to  be  collected  from  the  words  em- 
ployed by  himself,  in  his  wiU.  No  surmise  or  conjecture  of  any 
object  which  the  testator  may  be  supposed  to  have  had  in  view, 
can  be  alloAved  to  have  any  weight  in  the  construction  of  his  will ; 
imless  such  object  can  be  ascertained  from  the  plain  language  of 
the  will  itself.  And  not  only  ought  the  courts  to  look  to  the  words 
of  the  will  alone,  to  determine  the  operation  and  effect  of  a  devise, 
l)ut  they  ought  to  disregard  altogether  the  legal  consequences 
which  may  follow  their  construction. 

The  judgment  of  a  court,  in  expounding  a  Avill  should  be  sim- 
ply declaratory  of  what  is  in  the  instrument,  a  At  the  same  time 
Courts  of  Law,  though  precluded  from  ascribing  to  a  testator, 
any  intention  not  expressed  in  his  will,  admit  their  obhgation  to 
give  effect  to  every  intention  which  the  will,  i^roperly  expounded, 
contains.  The  cjuestion  in  expounding  a  will,  is  not  what  the 
testator  meant,  as  distinguished  from  what  his  words  express,  bvit 
simply,  what  is  the  meaning  of  the  words. 

In  enforcement  of  this  doctrine,  Parke,  B.  said,  in  Doe  dem. 
GwiUim  :b  "It  is  often  extremely  difficult  to  say  what  the  actual 
intent  of  a  testator  was.  The  court  is  to  ascertain,  not  what  the 
testator  actually  intended,  but  what  is  the  meaning  of  the  words 
he  has  used.  It  must  l)e  often  matter  of  mere  conjecture  what 
he  actually  meant  to  be  done,  but  there  can  be  no  doubt,  what- 
ever, w'hat  is  the  meaning  of  tlie  words  he  has  used."  The  doc- 
trine was  admitted  and  extended  by  Lord  Denman  in  Ptickman  v. 
Carstairs,  in  which  case,  the  Chief  Justice  said,  "  The  question 
in  this  and  other  cases  of  construction  of  written  instruments  is, 
not  what  w^as  the  intention  of  the  parties,  but  what  is  the  mean- 
ing of  the  words  they  have  used."  c 

In  the  exposition  of  a  statute,  the  intention  of  the  Legislature 
may  be  discovered  from  different  signs ;  but  as  a  leading  clue  to 
construction  to  be  made,  it  is  to  be  collected  fi'om  the  words  used. 
And  while,  as  before  stated  it  is  a  fundamental  maxim  that  effect 
ought  to  be  given  to  the  intention  and  object  of  the  framers,  it 
must  now  be  added,  in  order  to  give  such  rule  its  full  significa- 
ation  ;  that  it  must  be  such  an  intention  as  the  legislature  have 
used  fit  words  to  express.  "Although  the  spirit  of  an  instru- 
ment," says  Story,  "  is  to  be  regarded  no  less  than  its  letter,  yei 
the  spirit  is  to  be  collected  from  the  letter.  •'     It  would  be  dan- 

a  Wigram's  Examination  of  Rules  as  to  Extrinsic  Evidence,  Introd.  p.  9. 

b  5B.&A.  12d.  c  lb.  G63. 

Note  3. — It  is  only  in  cases  where  the  meaning  of  a  statute  is  doubtful,  that 


QUALIFIED    INTERI'RETATION.  183 

gerous  in  the  extreme  to  infer  from  extrinsic  circumstances,  that 
a  case,  for  which  the  words  expressly  provide,  shall  be  exempted 
from  their  operation,  &c."  a 

To  "  try  out  tlie  ri^dit  intendment  of  a  law,"  Lord  Coke's  usual 
course  is,  first  to  consider  the  trae  import  of  the  words  them- 
selves, and  then  to  refer  to  the  old  books  and  authors  that  wrote 
soon  after  the  passing  of  the  law.  And  this,  he  says,  is  bencdicla 
expositio ;  a  good  and  sound  construction  ;  when  our  ancient 
authors  (text  writers)  and  our  year  books  (reportsj,  together  witli 
constant  experience  (practice),  do  agree.  />  ' 

It  is  this  view,  and  chiefly,  if  not  solely,  with  the  object  of  dis- 
covering,  if  possible,  the  intention  of  the  legislators,  that,  when 
the  words  of  an  act  are  obscure  or  douljtful,  considerable  stress 
is  laid  upon  the  hglit  in  which  it  was  received  and  held  by  the 

a  Story  on  the  Conflict  of  Laws,  lulrod.  Remarks,  p.  10. 
b  2  Inst.  11,  136,  181.  » 

courts  are  aiatborized  to  indulge  in  conjectures  as  to  the  intention  of  the  legisla- 
ture, or  to  look  to  consequences  in  the  construction  of  the  law.  When  the  mean- 
ing is  plain  and  unambiguous  the  act  must  be  carried  into  effect  according  to  its 
language,  or  the  courts  would  be  assuming  legislative  authority  ;*  and  it  is  not  for 
the  court  to  say  as  to  such  clear  langur.ge,  that  it  embraces  cases  not  described, 
because  no  reason  is  seen  why  they  were  not  included.  Scott  v,  Ileid,  10  Pet.  5:^-1. 

Note  4. — The  best  rule  of  interpretation  to  be  adapted  by  the  courts,  is,  to 
ascertain  the  meaning  of  the  legislature  from  the  words  used  in  a  statute,  and  the 
subject  matter  to  which  it  relates,  and  to  restrain  its  operation  within  narrower 
limits  than  its  words  import,  if  satisfied  that  the  literal  meaning  would  extend  it 
to  cases  which  the  legislature  never  designed  to  include.  Brewer  v.  Blougher, 
UPet.  178." 

Note  5. — If  by  the  words  of  a  statute  the  intention  of  the  legislature  be  improba- 
ble, the  court  must  then  giver  it  construction.     The  Hunter,  Peters,  C,  C.  Pi. 

If,  in  a  statute,  there  be  a  mistake  ai:)pareut  on  its  face,  it  may  be  corrected  by 
other  language  in  the  act  itself,  and  such  mistake  will  not  be  fatal ;  nor  wiU  any 
misnomer  of  a  person  named  in  the  act  be  fatal,  if  the  person  really  intended  can 
be  collected  from  the  terms  of  the  act  itself.  Blanchard  v.  Sprague,  3  Sumner,  279 . 
But  where  the  descriptive  words  constitute  the  very  essence  of  the  act,  unless  the 
description  be  so  clear  and  accurate  as  to  refer  to  the  particular  object  intended, 
and  bo  incapable  of  being  applied  to  anj'  other,  the  mistake  will  be  fatal.  Id. 

Statutes  that  are  apparentlj'  in  conflict,  should  be  so  construed  that  both  may 
stand  if  possible.  Johnson  v.  Byrd,  Hempstead  R.  i34,  and  they  are  to  be  recon- 
ciled so  far  as  they  may  be  on  any  fair  hypothesis,  and  validity  given  to  each  of 
them,  if  it  can  be,  and  is  necessary  to  conform  to  usages  under  them,  or  to  pre- 
serve titles  to  property  undistributed.     Beals  v.  Hale,  4  How.  U.  S.  R.  37. 

The  best,  safest,  and  most  reasonable,  policy,  in  the  American  judicial  depart- 
ments, is,  to  adopt  a  liberal  construction  for  statutes,  and  a  strict  construction  oJ 
constitutional  provisions. 

»  2  Paiue,  584. 


IS-i  QUALIFIED   INTERPEETATION. 

contemporary  members  of  tlie  i^rof ession  ;  "conlcmjwranca  cxpositio 
est/ortissima  in  lege.''  Great  regard,  says  Lord  Coke,  "  ought,  in 
construing  a  statute,  to  be  paid  to  the  construction  which  the 
sages  of  the  hrw,  who  hved  about  the  time,  or  soon  after  it  was 
made,  put  upon  it ;  because  they  were  best  able  to  judge  of  the 
hitentions  of  tlie  makers  at  the  time  when  the  haw  was  made." 

In  the  exposition  of  a  statute  then,  the  intention  of  a  legislator 
may  be  discovered  from  different  signs.  As  a  primary  rule  it  is 
to  he  collected  from  the  words  ;  when  the  words  are  not  explicit, 
it  is  to  be  gathered  from  the  occasion  and  necessity  of  the  law, 
the  defect  in  the  former  law  and  the  designed  remedy ;  being 
the  causes  which  moved  the  legislature  to  enact  it.  But  "in  arriv- 
ing at  a  conclusion  from  these  last  mentioned  premises,  the  gi-eat- 
est  care  and  circumspection,  and  the  exercise  of  the  soundest 
judicial  discretion,  are  reciuired ;  an  attention,  it  will  be  seen, 
directed  not  only  to  the  pro])er  application  of  the  rule,  but  to  the 
reason  upon  which  the  rule  is  founded. 

The  rides  by  which  the  sages  of  the  law,  according  to  Plowden,a 
have  ever  been  guided  in  searching  for  the  intention  of  the  Legis- 
lature, are  maxims  of  sound  interpretation,  which  have  been  ac- 
cumulated by  the  experience,  and  ratified  by  the  approbation  of 
ages.  The  resolutions  of  the  Barons  of  the  Exchequer  in  Hey- 
don's  case  were  the  following  : —  h 

"  For  the  sure  and  true  interpretation  of  all  statutes  in  gen- 
eral, be  they  penal  or  beneficial,  restrictive  or  enlarging  of  the 
common  law,  four  things  are  to  be  discerned  and  considered  : — 

"  1.  What  was  the  common  law  before  the  making  of  the  act  ? 

"  2.  What  was  the  mischief  and  defect  against  which  the  com- 
mon law  did  not  provide  ? 

"  3.  What  remedy  the  parliament  hath  resolved  and  appointed 
to  cure  the  disease  of  the  commonwealth  ? 

"  And  4thly,  the  true  reason  of  the  remedy.  •"' 

"  It  was  then  held  to  be  the  duty  of  the  judges  at  all  times,  to 
make  such  construction  as  should  suppress  the  mischief  and  ad- 
vance the  remedy ;  putting  down  all  subtle  inventions  and  eva- 
sions for  continuance  of  the  mischief,  et  pro  j>rivato  commodo  ; 
and  adding  force  and  life  to  the  cure  and  remedy,  according  to 
the  true  intent  of  the  makers  of  the  act,  jjro  bono puUico'' 

a  Plowd.  Eep.  p.  205.  h  3  Eep.  7. 

Note  G. — It  is  the  duty  of  courts  so  to  construe  statutes,  as  to  meet  the  mis- 
chief; to  advance  the  remedy,  and  not  to  violate  fundamental  princiiDles.  Hart 
V.  Cleis,  8  John.  44. 

In  this  State  the  rule  is,  to  read  statutes  accordiuf?  to  the  most  natural  and  obvi- 
ous import  of  the  language,  without  resorting  to  subtle  and  forced  construction  for 
the  purpose  of  cither  limiting  or  extending  their  operation.  Waller  v.  Harris, 
20  WeDd.5Gl-2. 


QUALIFIED   INTERPRETATION.  185 

Nor  is  this  an  antiquated  doctrine  :  it  is  recognized  and  acted 
upon  in  modern  cases.  In  Lyde  v.  Bernard,  a  Parke,  B.,  said : 
"  1  admit  that  Avords  may  be  construed  in  a  sense  different  from 
their  ordinary  one  when  the  context  recpiircs  it,  or  wlien  the  act 
is  intended  to  remedy  some  existing  mischief,  and  such  a  con- 
struction IS  required  to  render  the  remedy  ellectual  For  we  must 
always  constnie  an  act  so  as  to  suppress  the  mischief  and  advance 
the  remedy." 

To  guard  against  misconception,  it  becomes  necessary  to  ob- 
serve in  this  place,  that  the  eidarged  inter})retation  of  statutes, — 
"  to  apply  the  remedy  to  the  mischief;"  said  by  Lord  Coke  "to 
have  been  ever  the  practice  of  the  ancient  sages  of  the  law ;"  ex- 
pounding a  statute  so  as  to  give  a  right  of  action  contrary  to  the 
letter  of  the  enactment,  is  not  now  admitted ;  at  least,  it  is  said 
such  principles  of  interpretation  are  applicable  to  old  statues 
only,  which  were  shortly  worded ;  a  topic  treated  hereafter. 

First  in  importance,  according  to  these  able  and  experienced 
judges,  is  the  consideration  of  what  was  the  rule  at  the  common 
law.  "  To  know  what  the  common  law  was,  before  the  making  of 
a  statute,  whereby  it  may  be  seen  wh(?ther  the  statute  be  intro- 
ductory of  a  new  law,  or  only  affirmative  of  the  common  law,  is 
the  very  lock  and  key  to  set  open  the  windows  of  the  statute."  h 

Further,  as  a  rale  of  exposition,  statutes  are  to  be  construed  in 
reference  to  the  principles  of  the  common  law.  For  it  is  not  to  be 
presumed  that  the  legislature  intended  to  make  any  innovation 
upon  the  common  law,  further  tlian  the  case  absolutely  required, 
The  law  rather  infers  that  the  act  did  not  intend  to  make  any  al- 
teration, other  than  what  is  specified,  and  hesides  what  has  beer 
plainly  pronounced  ;  for  if  tlio  parliament  had  had  that  design,  i1 
is  natui'ally  said,  they  would  have  expressed  it. ' 

It  was  observed  by  the  judges,  in  the  case  of.  Stowell  and 
Zouch,  that  it  was  good  for  the  expositors  of  a  statute  to  approach 
as  near  as  they  could,  to  the  reason  of  the  common  law.  c  The 
best  interpretation  of  a  statute,  say  other  cases,  is  to  constnie  il 
as  near  to  the  rule  and  reason  of  the  common  law  as  may  be,  and 

rt  1  M.  &  W.  113.  h  2  Inst.  301  ;  3  Eep.  31  ;  13  Hob.  83. 

c  Plowd.  365. 

Note  7. — The  same  rule  of  iuterpretatiou  is  adopted  by  our  courts,  federal  and 
state  ;  reference  is  bad  to  the  common  law  in  force  at  the  time  of  their  passage. 
Mayo  V.  Wilson,  1  New  Hamp.  55;  How  v.  Peckham,  G  How.  Pr.  E.  229;  Yau 
Home  V.  Dorrance,  2  Dall.  316;  Rice  v.  M.  &  N.  AV.  R.  R.  Co.,  1  Blatch  359; 
Talbot  V.  Simpson,  Peters  C.  C.  R.  188. 

Chancellor  Kent  says,  "  this  has  been  the  language  of  courts  in  every  age,  and 
when  we  consider  the  constant,  vehement  and  exalted  eulogy  which  the  ancient 
sages  bestowed  upon  the  common  law  as  the  perfection  of  reason,  and  the  best 
birthright  and  noblest  inheritance  of  the  subject,  we  cannot  be  surprised  at  the 
great  sanction  given  to  this  rule  of  construction." 
24 


186  QUALIFIED  INTERniETATION. 

by  the  course,  wliicli  that  observes  in  other  cases,  a  Such,  m- 
deed,  has  been  the  language  of  the  courts  in  every  age  ;  and  when 
we  consider  the  constant,  vehement,  and  exalted  eulogy  which  the 
ancient  sages  bestowed  upon  the  common  law,  as  "  the  perfection 
of  reason,"  and  the  "  best  birthright  and  noblest  inheritance  of 
the  subject,"  we  cannot  be  surprised  at  the  great  sanction  given 
to  this  rule  of  construction,  and  its  careful  observance,  h 

By  the  stat.  de  donis  it  was  enacted,  that  a  line  levied  of  entailed 
lands,  "ipsojnrre  sit  nidlus  ;  "  yet  the  construction  was,  that  such 
line  should  not  be  a  nullity,  but  only  a  discontinuance  ;  because, 
at  the  common  law,  if  a  bishop,  seised  in  right  of  his  church,  or 
a  husband  in  right  of  his  wife,  had  aliened  by  a  fine,  it  was  only 
a  discontinuance,  c 

Though  the  assignee  of  tenant  by  courtesy  or  dower,  is  within 
the  letter  of  the  stat.  of  Gloucester,  c.  5,  for  he  holdeth  in  some 
manner  for  life,  and  the  words  are  oii  en  aider  maner  a  terme  de 
vie  ;  yet  no  action  of  waste  shall  be  brought  by  the  heir  against 
the  assignee,  but  only  against  the  tenant  by  courtesy  or  dower, 
these  being  the  sole  persons  against  whom  it  lay  at  the  common 
law,  cZ 

When  a  statute  alters  the  common  law,  the  meaning  shall  not 
be  strained  beyond  the  words,  except  in  cases  of  public  utility, 
when  the  end  of  the  act  appears  to  be  larger  than  the  enacting 
words. 

The  stat.  of  Westmr.  1,  c.  20,  de  malefactorihus  in  parcis  et  vivo- 
riis,  shall  not  be  extended  to  forests,  because  this  act  is  in  restraint 
of  the  common  law. 

If  a  statute  make  use  of  a  word,  the  meaning  of  which  is  well 
known,  and  has  certain  definite  sense  at  the  common  law,  the  word 
shall  be  expounded  and  received  in  the  same  sense  in  which  it  is 
understood  at  the  common  law. e  Thus,  the  term  "cottages" 
(which  is  used  in  stat.  31  EHz.  c.  7,)  has  the  same  signification 
there,  as  it  had  at  the  common  law,  and  as  is  applied  to  it  in  Do- 
mesday Book.  /' 

Secondly,  The  intention  of  the  makers  of  a  statute  is  some- 
times to  be  discovered  fi'om  the  cause  or  necessity  of  making  the 
act :  hence,  the  direction  to  inquire  into  the  mischief  against 
which  the  common  law  had  not  pro\ided.  Thus,  in  Hey  don's 
case,  the  common  law  was,  that  religious  and  ecclesiastical  per- 
sons might  have  made  leases  for  as  many  years  as  they  pleased  ; 
the  mischief  was,  that  when  they  perceived  their  houses  would 
be  dissolved,  they  made  long  and  unreasonable  leases.  Before 
the  first  Marriage  Act,  26  Geo.  2,  c.  33,  the  mischief  was,  that 

a  IT.  Wms.  252  ;  2  Inst.  148,  301  ;  1  Sand.  240. 

h  1  Kent's  Comm.  on  Laws  of  America,  434. 

0  3  Kep.  83  ;  the  case  of  Fines,  Hob.  97.  d  2  Inst.  300. 

e  G  Mod.  143.  f  2  Inst.  736. 


QUALIFIED   IKTERPEETATION.  187 

clandestine  maniages,  though  illegal,  not  being  vacated,  but  only 
])unished  by  a  committal  to  i)iison,  "which  -was  found  ridiculous 
and  ineilectual,  the  practiet;  still  continued. 

This  cause  and  reason  of  the  act  (or,  in  other  words,  the  mis- 
chief requiring  a  remedy)  may  either  be  collected  from  the  stat- 
ute itself,  or  discovered  from  circumstances  extrinsic  of  the  act, 
such  as  the  state  of  the  ancient  hnv.  To  detect  the  mischief  or 
defect  in  tlu^  former  law  "which  was  the  occasion  of  the  act,  re- 
course 2nay  be  fairly  and  legitimately  had  to  the  title  and  the 
preamble  ;  as  these,  from  their  custom  of  reciting  the  grievance, 
or  part  of  it,  may  often  serve  to  show  the  general  scope  and  i)ur- 
port  of  the  act,  and  the  inducements  which  led  to  its  enactment. 

Thirdl}',  The  remedy  is  to  be  gathered  from  the  act  itself.  The 
remedy  provided  in  the  case  before  mentioned  (Heydon's  case,) 
was  afforded  by  the  stat.  31  Hen.  8,  which  provided  "  that  all 
leases  by  any  abbott,  Sec,  or  any  other  religious  and  ecclesiastical 
house,  etc.,  of  any  land,  whereof  any  estate  or  interest  for  life  or 
years  was  then  in  being,  should  be  utterly  void." 

And,  fourthly,  its  reason  was*,  that  it  was  not  necessaiy  for  them 
to  make  a  new  lease,  so  long  as  a  former  one  had  continuance, 
and  therefore  the  intent  of  the  act  was  to  avoid  doubling  of 
estates,  and  to  hUve  but  one  single  estate  in  being  at  a  time. 
"  For  doubling  of  estates,"  says  Lord  Coke,  "implies  in  itself 
deceit  and  private  respect,  to  prevent  the  intention  of  the  Parlia- 
ment. If,"  (which  was  the  question  in  that  case)  "  the  copyhold 
estate  for  tAvo  lives,  and  the  lease  for  eighty  years  shall  stand  to- 
gether, here  will  be  doubling  of  estates  siinul  et  semel,  which  will 
bo  against  the  true  meaning  of  Parliament."  a 

In  the  case  also  before  stated  for  illustration,  of  the  Marriage 
Act,  the  "remedy"  was,  that  its  enactments  required  the  consent 
of  the  father,  guardian,  or  mother  to  the  marriage  of  persons  who 
were  under  age,  the  marriage  not  being  by  banns.  Illegitimate 
children  being  within  the  mischief  and  within  the  "reason"  of 
the  remedy,  were  held  also,  in  Pi.  v.  Hodnett,  h  to  be  within  the 
meanmg  of  the  act. 

Again,  as  regards  the  reason  of  the  law,  it  is  a  maxim  that  Uhi 
lex  est  sjxciciUs  et  ratio  ejus  generalis,  genevaliter  accijnencla  est  : 
thus  the  stat.  5  Hen.  4,  that  none  be  imprisoned  by  anj  justice  of 
the  peace  but  in  the  common  gaol,  to  the  end  that  they  may  ha^^e 
their  trial  at  the  next  gaol  delivery  or  sessions  of  the  peace,  has 
been  thought  to  extend  to  all  other  judges  and  justices  ;  for  the 
same  general  reason  applies  in. the  case  of  all  functionaries,  upon 
whom  it  is  equally  incumbent  to  afford  a  prisoner  speedy  justice 
by  duo  trial,  Avithout  detaining  him  long  in  prison,  c  Here  the 
reason  of  the  rule  is  general,  though  the  provision  is  special ;  it 
lias  therefore  a  general  acceptation. 

a  Heydon's  case,  3  Kep.  8.  6  1  T.  E.  96  ;  ib.  313.  c  2  Inst.  33. 


188  QUALiriED  INTEErRETATION. 

Tlie  mischief,  it  lias  been  already  stated,  may  be  discovered 
aliunde ,  that  is  to  say,  the  former  haw  may  legitimately  be  re- 
garded, and  the  title,  preamble,  and  recitals  referred  to  ;  the 
remedy  is  to  be  collected  from  the  act  itself ;  and  then  the  safe 
and  established  rule  of  construction  is,  that  the  intention  of  the 
law-giver  and  the  meaning  of  the  law,  are  to  be  discovered  and 
deduced  from  a  view  of  the  tchole  and  of  every  part  of  a  statute 
taken  and  compared  together. 

It  is  the  most  natural  and  genuine  exposition  of  a  statute,  to 
construe  one  part  by  another  part  of  the  same  statute,  for  that 
best  expresses  the  meaning  of  the  makers ;  and  such  construc- 
tion is  ex  vm-eribiis  actus,  a  And  this,  construction  of  itself  im- 
ports ;  ex  vi  termini  If,  therefore,  any  part  of  a  statute  be  in- 
tricate, obscure,  or  doubtful,  the  proper  way  to  discover  the  in- 
tent, is  to  consider  the  other  parts  of  the  act ;  for  the  words  and 
meaning  of  one  part  of  a  statute  frequently  lead  to  the  sense  of 
another,  h  and  in  the  construction  of  one  part  of  a  statute,  every 
other  part  ought  to  be  taken  into  consideration. "  Thus,  in  the 
construction  of  cap.  9  of  the  statute  of  Gloucester,  "  Purvieio  est, 
que  nul  appeale  soit  alaftu,''  d'-r. ;  this  clause,  taken  by  itself,  is 
general ;  and  literally,  as  some  have  taken  it,  extendeth  to  all  ap- 
peals, as  of  death,  robbery,  rape,  felony,  &c.,  bi»t  ex  antecederdilms 
et  consequciitihus  ft  optiwa  interprefatio,  and  all  the  antecedent 
clauses  do  concern  the  death  of  man  (murder) ;  it  was  therefore- 
held,  that  the  appeals  of  robbery,  rape,  felony,  etc.,  are  not  with- 
in this  act.  c     "  In  doubtful  cases,"  said  Trevor,  C.  J.,  "we  may 

a  1  Inst.  381.  h  Stowell  and  Zoncb,  PloAvd.  305. 

c  2  Inst.  310. 

Note  8. — In  the  construction  of  statutes  one  part  must  bo  construed  by  an- 
other ;  to  collect  the  legislative  intention  the  whole  must  be  insi^ected.  The 
Stafford  Justices,  Brock.  E.  162,  and  recourse  may  be  had  for  this  purpose  to  a 
proviso  which  has  been  repeated  by  a  subsequent  act.  Bk.  of  Savings  v.  Collec- 
tor, 3.  Wall.  495. 

Statutes  are  to  be  interi:)reted  so  as  to  give  effect  to  all  the  words  therein,  if 
such  interpretation  be  reasonable,  and  be  neither  repugnant  to  the  provisions, 
nor  inconsistent  with  the  objects  of  the  statute.  U.  S.  v.  Bassett.  2,  Story  E.  389. 
But  it  is  otherwise  if  such  an  interpretation  require  the  introduction  of  new  pro- 
visions and  clauses  to  render  it  sensible  or  j^racticable,  ib.  Every  part  of  the 
statute  must  be  viewed  in  connection  with  the  whole,  so  as  to  make  all  its  parts 
harmonious,  if  this  be  practicable  ;  and  if  it  will  admit  of  a  construction  which 
will  give  effect  and  operation  to  every  part,  it  ought  never  to  be  construed,  so  as 
to  draw  after  it  unnecessary  and  superfluous  i^rovisions.  Ogden  v.  Strong,  2 
Paine  584.  It  is  not  to  be  presumed,  that  the  legislature  intended  that  any  part 
oi  a  statute  should  be  without  its  proper  meaning,  force  or  effect,  and  when  a 
state  changes  its  constitution,  all  the  laws  continue  in  force  not  inconsistent  with 
it.  All  laws  repugnant  to  it  are  repealed  by  implication.  Cass  v.  Dillon,  2  Ohio 
(N.  S.)  607. 


QUALIFIED   INTEErEETATION.  180 

enlarge  the  constniction  of  acts  of  parliament  according  to  the  rea- 
son and  sense  of  the  lawmakers  expressed  in  other  ])arts  of  tlie  act, 
or  guessed  by  considering  the  frame  and  design  of  the  whole."  a 

It  is  another  rale  of  interpretation,  which  is  mentioned  here, 
on  account  of  its  close  affinity  with  the  maxim  last  under  consid- 
eration, that  one  part  of  a  statute  must  be  so  construed  by  an- 
other, that  the  whole  may,  if  possible,  stand ;  itt  res  riiagis  vaJcat 
(inain  i)ereat.  As,  if  land  be  vested  in  the  king  and  his  lieu's  by 
act  of  })arliament,  sa\ing  the  right  of  A.,  and  A.  has  at  that  time 
a  lease  of  it  for  three  j'ears ;  here  A.  sliall  hold  it  tor  his  term  of 
three  years,  and  afterwards  it  shall  go  to  tlie  king.  For  this  in- 
terpretation furnishes  matter  for  every  clause  of  the  statute  to 
work  and  operate  upon ;  A  while,  as  has  before  been  shown,  o  a 
saving  totally  repugnant  to  the  body  of  the  act,  and  which  would 
render  the  statute  nugatory,  is  rejected  as  void.  Accordingly,  it 
is  a  rule,  that  such  exposition  of  a  statute  is  to  be  favored,  as 
hhiders  the  statute  from  being  eluded.  <l 

Again,  when  words  are  capable  of  a  twofold  constniction, 
whether  in  deeds  or  wills,  or  statutes  ;  the  rule  is  to  adopt  such 
an  interpretation,  ut  res  viagis  vahat  quam  pcreat ;  but  "  this," 
says  Story,  "  is  a  rule  of  mere  common  sense." 

As  one  part  of  a  statute  is  properly  called  in,  to  help  the  con- 
struction of  another  part,  and  is  litly  so  expounded,  as  to  support 
and  give  effect,  if  possible,  to  the  wdiole.;  so  is  the  comparison  of 
one  law  with  other  laws  made  by  the  same  legislatiu'e,  or  upon 
the  same  subject,  or  relating  expressly  to  the  same  point,  en- 
joined for  the  same  reason,  and  attended  with  a  like  advantage. 
In  a})plying  the  maxims  of  interiDretation,  the  object  is  throu<^h- 
out,  first,  to  ascertain  by  legitimate  means ;  and  next  to  cany  in- 
to effect ;  the  intentions  of  the  framer.  It  is  to  be  infened,  that 
a  code  of  statutes  relating  to  one  subject,  was  governed  by  one 
spirit  and  pohc}',  and  was  intended  to  be  consistent  and  harm- 
onious in  its  several  parts  and  provisions.  It  is  therefore  an 
estabhshede  rule  of  laAv,  that  all  acts  in  ^Mri  mater ie  are  to  be 
taken  together,  as  if  they  were  one  law  ;  and  they  are  directed  to 
be  compared  in  the  construction  of  statutes,  because  they  are  con- 
sidered as  fi'amed^.  upon  one  system,  and  having  one  object  in 
view.  ^     If  one  statute  prohibit  the  doing  a  thing,  and  another 

a  Archer  and  Bokenliam,  11  Mod.  161.  h  1  Bl.  Com.  89. 

r.  Auto,  p.  513.  a  2  llol.  127. 

e  4  T.  11.  447;  5  T.  E.  417;  Earl  of  Ailesbiiry  v.  Patterson,  Dougl.  30. 

Note  9 .— Several  statutes  that  are  in  7)ari  materia  are  to  be  construed  as  ono 
statiito.  in  exphiiniufr  their  meaning  and  import.  Patterson  v.  Winn,  11  "Wheat. 
•Mi);  li  The  Harriet,  1  Story  K.  251  ;  U.  S.  v.  Hervcs,  Crabbe  E.  307;  Dubois  v. 
McLean,  4.  McLean  E.  489,  3  Blatchford  C.  C.  E.  325,  and  cotemporaneous,  an- 
tooedeut  and  subsequent  statutes  on  the  same  subject  matter  may  be  examined  and 
considered  in  construing  the  said  act.  Eodgers  v.  Bradshaw,  20  John  744:  Mc- 
Cartce  v.  Orphan  Asvhim,  9  Cow,  507;  Eexford  v.  Knight,  15  Barb.  ('.42,  1  Kent 
Com.  4G3;  "Waterford  &  W.  Turnpike  Co.  v.  People,  9.  Barb.  161. 


190  QUALIFIED  INTERrEETATION. 

statute  be  afterwards  made,  whereby  a  forfeiture  is  inflicted  upon 
die  person  doing  that  thing,  both  are  considered  as  one  statute,  a 
When  an  action  founded  upon  one  statute,  is  given  by  a  subse- 
L^uent  statute  in  a  new  case,  everything  annexed  to  the  action  by 
the  lirst  statute  is  hkewise  given,  h  _  Indeed,  tlio  latter  act  may  be 
considered  as  incorporated  with  the  former. 

The  stamp  acts  are  revenue  hiws,  aU  made  in  pari  maferic,  and 
to  be  taken  together.  Tliough  they  say,  therefore,  that  an  un- 
stamped paper  shall  be  void,  yet  they  also  make  a  provision  to 
make  it  good ;  there  being  clauses  in  some  of  them  to  enable  the 
party  wlio  has  made  a  contract  on  unstamped  paper,  to  get  it 
stamped  after  it  is  made,  on  paying  a  certain  penalty.  So  that 
if  it  be  stamped  at  the  time  it  is  produced,  it  is  sufficient,  c '" 

And  the  rule,  it  is  said,  equally  applies,  though  some  of  the 
statutes  may  have  expired,  or  are  not  referred  to,  in  the  other  acts. 
"It  is  a  rule  in  the  construction  of  statutes," said  Lord  Mansfield,  d 
"that  all  which  relates  to  the  same  subject,  notwithstanding 
Bome  of  them  may  be  expired  or  are  not  referred  to,  must  be 
taken  to  be  one  system,  and  construed  consistently ;"  and  the 
practice  has  been  so  to  do,  in  cases  of  bankruptcy,  church  leases, 
poor  laws,  and  in  other  cases.     Thus, — 

The  13  Ehz.  c.  10,  concerning  leases  made  by  spirituahpersons, 
being  enlarged  by  the  14tli  Eliz.  e.  11,  although  only  the  former 
of  these  statutes  be  recited  in  the  18  Eliz.  c.  11,  it  has  been  holden,  - 
that  the  latter  is  virtually  recited  therein,  e 

In  the  same  case  it  has  been  laid  down,  that  there  is  such  a 
connection  betwixt  all  the  statutes  concerning  leases  made  by 
ecclesiastical  persons,  that  they  are  all  to  be  taken  into  consider- 
ation in  the  construction  of  any  one  of  them.  The  32  Hen.  8.  c.  28, 
is  not  recited  in  the  1  Eliz.  c.  19,  nor  in  the  13  Ehz.  c.  10 ;  yet  a 
lease  is  not  warranted  by  either  of  these  statutes,  imless  it  have 
the  qualfications  required  by  the  32  Hen.  8,  c.  28. 

The  22  and  23  Car.  2,.c.  lO,  for  the  better  settlmg  of  intestate's 

a  Rtradling  v.  Mercian,  Plow.  20fi.  h  Bro.  Waste,  PL  C8. 

c  Crossly  v.  Arkwright,  2  Term  Kep.  f\()9. 

d  Piex  V.  Loxdale  and  others.  1  Burr.  447,  Bac.  Abr.    tit.  Statutes,  1,  3. 
e  Bailey  v.  Murin,  1  Vent.  24G. 

Note  10. — Laws  imposing  duties,  are  not  construed  beyond  the  natural  im- 
port of  language,  and  they  are  never  to  be  construed  as  imposing  burthens  upon 
citizens,  upon  doubtful  interpretations.  Adams  v.  Bancroft,  3  Ham.  384;  U.  S. 
V.  Wigglesworth,  2  Story  E.  369, 

In  construing  laws  relating  to  trade  and  commerce,  the  vocabulary  of  merchants 
is  to  be  adopted  in  preference  to  that  of  mechanics.  U.  S.v.  Sarchet,  Gilp.  P. 
273,  and  the  word  imjKjrt  is  also  to  be  used  in  its  commercial  sense.  The  Fores- 
ter, Newberry  E.  81.  All  mercantile  terms  used  in  a  law  are  to  be  taken  in  the 
sense  intended  which  is  to  be  ascertained  by  laws  in  pari  materia.  U.  S.  v. 
Twenty-four  Coils  of  Cordage,  Baldwin  E.  502. 


QUALIFIED    INTEErRETATION.  191 

estates,  is  coutimied,  with  some  additional  clauses,  by  tlie  1  Jac. 
2,  c.  17.  It  was  Iioldcn  by  Lord  Hardwicke,  Chancellor,  that  for 
this  reason  the  hitter  statute  nuist  ha  construed  as  if  the  former 
had  been  therein  recited. a 

AV'here  acts  are  in  'jxirl  inalcrlc,  if  the  same  word  be  used  in  both 
statutes,  a  distinction  made  in  the  one,  is  a  legislative  exposition 
of  the  sense  in  which  it  is  to  be  understood  in  the  other.  //' 

In  the  1st  sect,  of  stat.  53  Geo.  3,  c.  151),  upon  which  the  case 
of  Gale  and  Laurie  depended  the  word  "ship"  only  is  used.  But 
that  act  and  the  7  Geo.  2,  c.  15,  and  2(5  Geo.  8,  c.  8G,  arc  all  in  pari 
viaferic.  "There  can  be  no  doubt,"  said  Lord  Tenderden,  "that 
the  first  section  of  the  act  on  whicli  this  question  arises,  is  to  be 
understood  as  if  the  words  v;i/h  (ill  her  <ii>pnr(eiinnres  were  used 
therein,  sujiposing  these  words  sliould  make  any  difference  in  the 
sense."  c 

But  as  an  act  of  Parliament,  Avhen  repealed,  "  must  l)e  consi- 
dered as  if  it  had  never  existed,"  a  doubt  has  been  felt,  how  a 
subsequent  statute  can  bo  taken  to  be  incorporated  with  such 
act,  not  1)1  esse  or  fuisse.  And  if  an  act,  not  a  subsisting  act, 
may  be  referred  to,  to  assist  in  the  construction  of  another  act 
upon  the  same  subject,  yet  how  can  an  act,  whicli  is  sui)posed  to 
have  never  existed,  be  said  to  be  in  pari  materie  with  any  other 
act?  It -is  a  still  broader  proposition,  that  words  can  be  used, 
borrowed  from  an  act  not  subsisting ;  although  for  a  collateral 
purpose  it  may  bo  deemed  competent  to  call  in  aid  a  repealed 
statute  to  assist  in  the  construction  of  another  statute. 

To  be  sure,  as  a  most  profound  and  accurate  judge  has  recently 
remarked  '.d  "  The  courts  do  not  deal  in  definitions."  To  stated 
tacts,  they  apply  the  settled  law  in  the  particular  case. 

But  it  is  ditlerent  with  the  text  writer.  It  is  his  province  and 
duty  to  apply  himself  to  the  discovery  and  apphcation  of  prin- 

a  WiiUis  V.  Hodson,  Barn.  Chan.  Eep.  27G. 

b  King  q.  t.  v.  Smith,  4  T.  E.  419, 

0  5  B  &  C.  1G2.  d  Maule,  J.,  7  Scott,  N.  C.  9  G5. 

Note  11 — In  the  construction  of  a  statute,  the  courts  -nill  look  out  of  it  to  other 
statutes  in  pari  materia,  or  statutes  of  a  similar  import,  which  may  be  regarded  as 
one  sj'stem  in  which  the  construction  of  any  separate  act  may  be  aided  by  the 
examination  of  other  provisions  which  compose  the  system.  United  States  v. 
Collin,  3  Blatch.  325. 

If  in  a  subsequent  clause  of  the  same  act,  provisions  are  introduced  which  show 
the  sense  in  which  the  legislature  employed  doubtful  i^hrases  previously  used,  that 
;;euse  is  to  be  adopted  in  construing  those  phrases. 

Consequently,  if  a  subsequent  act  on  the  same  subject  afibrds  complete  demon- 
stration ofthe  legislative  sense  of  its  own  language,  the  rule  already  stated,  re- 
qiiiring  that  the  subsequent  act  should  be  incorporated  into  the  prior  or  foregoing 
act,  is  a  direction  to  guide  the  courts  in  expounding  the  provisions  of  a  law. — 
Alexander  v.  Mayor,  &c,  5  Cranch.  1 . 


192  QUALHTED  IKl^EPEETATION. 

ciples.  Without  analysis,  or  without  geuerahzatioii,  he  can  be 
only  a  compiler  of  re2:)orted  cases.  However,  as  he  is  less  prac- 
tically occupied  in  dealing  with  facts,  he  often  incurs  the  danger 
uf  falhug  into  unnecessary  refinement. 

"  It  certainly  appears  strange,"  said  Williams,  J.,  in  a  late  case, 
"  that  when  an  act  of  Parliament  is  j:er  se  abolished,  it  shall  vir- 
tually have  effect  through  another  act."  But,  in  that  case,  the 
former  act  was  substantially  re-enacted,  a  It  docs  indeed-  seem 
to  be  the  prevailing  doctrine  (and  it  is  more  rational  in  itself,  ■ 
than  consistent  with  coeval  maxims  ;)  that,  where  one  statute  re- 
fers to  another  which  is  repealed,  the  words  of  the  former  act 
must  still  be  considered  as  if  introduced  into  the  latter  statute. 
"  The  objection  arising  from  the  repeal  of  the  former  statute," 
said  Lord  Denman  ,  in  Eeg.  v.  Stock,  "  is  not  insisted  on,  and 
does  not  seem  to  be  tenable."  h  In  the  case  of  Bussey  v.  Story, 
4  B.  &  A.  Parke,  J.,  said  :  "  This  act  of  Parhanient  repeals  those 
of  32  Geo.  3  and  41  Geo.  3,  the  j)rovisions  of  which  are  only  so 
far  material,  as  they  may  aid  in  the  construction  of  the  enact- 
ments of  the  existing  statute,  &c."  c 

According  then  to  the  received  doctrine,  a  repealed  act  "  oblit- 
erated "  from  the  judicial  mind,  and  "  considered  as  if  it  had  never 
passed,"  d  will  often  have  more  legal  import  a  century  later,  from 
aiding  the  construction  of  subsequent  statutes,  than  it  ever  pos- 
sessed itself,  Avhile  in  viridi ohservantia.  "This  is  shocking,"." 
as  said  by  Mansfield,  C.  J.,  of  a  certain  construction  on  wills, 
"  but  it  has  been  followed  in  a  hundred  cases." 

Hitherto,  it  has  been  shown,  that  in  the  construction  of  stat- 
utes, effect  ought  to  be  given  to  the  intention  of  the  legislature 
and  the  object  of  an  enactment ;  in  like  manner  as  in  wills,  deeds 
contracts  and  other  written  instruments,  regard  is  constantly  had 
to  the  just  intent  of  the  parties.  But  a  necessary  qualification 
lias  been  annexed  to  that  proposition ;  that  the  intention,  to 
ftiiich  such  effect  is  to  be  given,  must  be  such  an  intention  and 
object,  as  the  legislature  have  used  fit  words  to  express. 

To  a  clear  and  logical  consideration  of  the  subject,  next  in  or- 
ler  should  foUow  the  inquiry,  how ;  in  what  sense ;  with  what 
atitude,  or  under  wiiat  restrictions,  the  words  used  are  to  be 
:eceived  and  understood  ? 

a  Eeg.  V.  Merioucthshire,  G  Q.  B.  Kep.  .343.         h  8  Ad.  &  Ellis,  405. 
c  Page  98.  d  Expressions  of  Lord  Tenterden,  cited  ante. 

*  The  doctrine  that  shocked  the  Chief  Justice  of  the  Common  Pleas,  was  this  : 
—"That  a  remote  reversion  in  fee  of  other  lands,  passed ninder  a  general  devise" 
on  the  ground,  that  it  was  a  forced  construction  to  hold  property  to  pass  by  a  will 
which  clearly  was  not  at  the  time,  in  the  contemplation  of  the  testator.  Morgan 
dem.  Surman  v.  Surman,  1  Taunt.  292,  speaking  of  Chester  v.  Chester,  3  P.  Wnis. 
56.  The  doctrine  in  Chester  v.  Chester  was,  nevertheless,  supported  by  Lords 
Thurlow  and  Eldon  ;  and  when  Sir  W.  Grant  entertained  a  different  opinion,  his 
decision  was  afterwards  reversed  on  appeal,  15  Ves.  39(J. 


QUALIFIED    INTEEPRETATION.  193 

And  lastly,  after  a  full  investigatiou  Avliat  constitutes  the  com- 
petent or  inefficient  expression  of  the  -will  of  the  lawgiver,  the 
concluding  proposition  Avill  be  enounced  ;  that  eflcct  cannot  be 
given  to  an  intention  not  expressed. 

Subordinate  to  these  principal  divisions  of  the  entire  subject, 
will  have  to  be  discussed  some  particular  topics ;  the  letter  of 
the  law,  (whether  words  are  to  be  received  in  their  popular  or 
technical  sense  ;)  the  context ;  the  spirit  of  the  act  (whether  stat- 
utes be  in  their  nature  remedial  or  penal ;)  the  subject-matter  and 
the  provisions  of  acts. 

And  first  of  the  language  of  an  act ;  exploring  the  intention  of 
the  legislature,  by  the  commonest  and  most  natural  of  signs ; — 
the  words  and  the  context.  '■ 

The  Avords  of  a  statute  are  to  be  taken  in  their  ordinary  and 
familiar  signification  and  import,  and  regard  is  to  be  had  to  their 
general  and  jn-opcr  use  ;  iovjns  ct  norma  loqucndi  is  governed  by 
usage  ;  and  the  meaning  of  words,  spoken  or  written,  ought  to  be 
allowed  as  it  has  constantly  been  taken  :  "loqucndum  est  ut  vulgus^a 
But  if  the  usage  have  been,  to  construe  the  words  of  a  statute 
contrary  to  their  obvious  meaning  by  the  vulgar  tongue,  and  the 
common  acceptation  of  terms,  such  usage  is  not  to  be  regarded  ; 
it  being  rather,  say  the  books,  an  oppression  of  those  concerned 
(to  force  upon  them  a  conventional  meaning ;)  than  a  construction 
of  the  statute,  h  And  though,  where  the  Avords  of  a  statute  are 
doubtful,  general  usage  may  be  called  in  to  explain  them,  for  op- 
timus  legum  interpret  est  consuetiido,  c  usages  that  can  control  the 
words  of  an  act  of  Parliament,  must  be  universal,  and  not  the 
usage  of  any  particular  place,  d, 

And  first,  what  language  is  to  be  regarded  ? 

The  intent  of  the  legislature  is  not  to  be  "collected  fi'om  any 
particular  expression,  but  from  a  general  view  of  the  icliole  of  an 
act  of  Parliament,  e 

a  4  Rep.  47.  d  1  T.  E.  728. 

b  Vaughan,  169  ;  Tarker,  41.  e  Per  Best,  C.  J  ,  4  Bing.  19G. 

c  2  Kep.  81. 

Note  12. — While  it  is  the  duty  of  courts  iu  construing  statutes,  to  give  effect  to 
the  intent  of  the  law  making  power,  and  to  seek  for  that  intent  in  every  legitim- 
ate way,  yet  it  is  to  be  sought  first  of  all  in  the  words  and  language  employed, 
and  if  the  words  are  free  from  ambiguity,  and  express  clearly  the  sense  of  the 
framers,  there  is  no  occasion  to  resort  to  other  means  of  interi^retation.  Purdy 
V.  The  People,  4  Hill,  397,  per  Paige,  Senator,  id.  403;  McClusky  v.  Cromwell, 
11  N.  Y.  GOl,  G04;  WaUer  v.  Harris,  20  Wend.  561-2;  Story  const.  §  392.  The  na. 
tural  import  of  the  words  of  any  statute,  according  to  the  common  use  of  them 
when  applied  to  the  subject-matter  of  the  act,  is  to  be  considered  as  expressing 
the  intention  of  the  legislature,  unless  the  intention  so  resulting  from  the  ordinary 
import  of  the  words  be  repugnant  to  sound  acknowledged  principles  of  national 
or  state  policy.     Opinion  of  Sup.  court.  7  Mass.  523-4.  • 

25 


194:  QUALIFIED  INTEKPKETATION. 

In  cqnstruiiig  acts  of  Parliament,  judges  are  to  look  at  tlie 
language  of  the  whole  act,  and  if  they  find  in  any  particular 
clause  an  expression,  not  so  large  and  extensive  in  its  import  as 
those  used  in  other  parts  of  the  act,  and  upon  a  view  of  the  whole 
act,  they  can  collect  from  the  more  large  and  extensive  expres- 
sions used  in  other  parts,  the  real  intention  of  the  legislature,  it 
is  their  dxitj  to  give  eflfect  to  the  larger  expressions,  a  For,  as 
has  been  before  stated,  the  court  is  to  give  effect  to  every  clause, 
section,  and  word,  if  an  effect  can  be  given  to  it. 

As  the  construction  is  to  be  made  upon  the  entire  instrument, 
whole  wiU,  or  complete  statute,  and  not  upon  disjointed  parts  of 
it,  consequently  all  its  parts  are  to  be  compared,  considered,  and 
construed,  with  reference  to  each  other  : —  " 

Hence,  general  words  may  be  restrained ;  hence,  clauses  may 
be  controlled  by  clauses  ;  hence,  if  the  same  words  occur  in  dif- 
ferent parts  of  a  statute  or  will,  they  must  be  taken  to  have  been 
everywhere  used  in  the  same  sense  ;  subject,  perhaps,  to  the  same 
qualification,  in  acts  of  Parliament,  as  in  the  case  of  a  will ;  that 
the  coiu't  may  put  a  difi'erent  construction  upon  the  same  words, 
when  applied  to  diflerent  subject-matter,  as  v/as  held  by  Lord 
Macclesfield,  in  Forth  v.  Chapman,  where  words  were  applied 
to  different  estates  of  realty  and  personalty.  &  In  Sheffield  v. 
Lord  Orrery,  c  and  again  in  Southby  v.  Stonehouse,  d  Lord  Hard- 
wicke  recognized  the  doctrine  of  Lord  Macclesfield  in  Forth  v. 
Chapman,  that  the  same  words  may  have  different  constructions 
to  effectuate  the  intention  of  the  party. 

In  the  case  of  Porter  v.  Bradley,  Lord  Kenyon  said  :  "  It  would 
be  very  strange,  if  words  had  o.  diflerent  meaning  when  applied 
to  real  and  personal  property.  If  such  a  distinction  existed  in 
the  law,  it  certainly  would  not  agree  with  the  rule,  "  lex  'plus  lau- 
\latur,  quando  ratione  prohaiur  ;"  but  it  is  not  founded  in  law  "  e 
Again,  in  Ptoe.  dem.  Sheen  v.  Jeffery,  Lord  Kenyon  made  the 
«ame  remark  as  in  Porter  v.  Bradley,  "  That  the  very  same  words 

a  Per  Lord  Tenterden,  7  B.  &  C.  643.  c  3  Atk.  382. 

h  I'P.  Wms.  G67  ;  Forth  v.  Chapman.  d  2  Ves.Seu.  Gil. 

e  3  T.  E.  143. 

Note  13. — It  is  an  established  rule  in  the  exposition  of  statutes,  that  the  iuten- 
rion  of  the  lawgiver  is  to  be  deduced  from  a  view  of  the  whole  and  every  part  of  a 
statute,  taken  and  compared  together.  When  the  words  of  the  statute  are  not 
explicit,  the  intention  is  to  be  collected  from  the  context — from  the  occasion  and 
necessity  of  the  law — from  the  mischief  felt — and  the  object  and  remedy  in  view; 
and  the  intention  is  to  be  taken  or  presumed,  according  to  what  is  consonant  to 
reason  and  good  discretion.  This  was  the  rule  laid  down  by  Plowden,  p.  10,  57, 
205,  3C3,  and  by  which  Chancellor  Kent  says  :  "  the  sages  of  the  laws  have  ever 
been  guided  in  seeking  lor  the  intention  of  the  legislature  ;  "  and  which  he  ap- 
proves, "as  maxims  of  sound  interpretations,  which  have  been  accumulated  by 
the  experience,  and  ratified  by  the  apjirobatiou  of  ages."  1  Kent  Com.  402. 


QUALIFIED   INTERPRETAnON.  195 

m  the  same  clause  in  a  will  should  receive  one  construction,  as 
apphed  to  one  species  of  property,  and  another  construction  as 
applied  to  another,  is  not  reconcileable  with  reason ; "  but  lie 
added,  that  it'  it  had  become  a  settled  rule,  it  might  Ije  danger- 
ous to  (overturn  it.  a 

But  in  the  case  of  Crooke  v.  De  Vandes,  b  Lord  Eldon  remarks, 
that  he  had  heard  tlie  case  of  Forth  v.  Chapman  cited  for  years, 
and  repeatedly  l)y  Lord  Kenyou  himself  ;  and  that  lie  never  knew 
it  shaken.  In  Elton  v.  Easun,  Sir  AV'illiam  Grant,  Master  of  the 
Rolls,  thus  begins  his  judgment :  "  There  is  no  reason  why  the 
same  words  may  not  be  dilierently  construed,  when  they  apply  to 
different  descriptions  of  property,  governed  by  different  rules. 
The  case  of  Crooko  v.  De  Vandes,  in  which  the  Lord  Chancellor 
expresses  his  o})inion  very  strt)ngly  in  favor  of  the  distinction  in 
Forth  v.  Chapman,  (and  Lord  Hardwicke  has  repeatedly  recog- 
nised it,)  appears  to  ho  just  as  strong  as  this."  c  And  see  Tenny 
dem.  Agar  v.  Agar,  d  Dansoy  v.  Griffiths,  c  Doe  dem.  Cadogan  v. 
Ewart,  /■,  Doe  dem.  Blcsard  v.  Simpson,  rj  and  Lees  v.  Morley.  h 

But  though  words  maybe  taken  in  a  different  sense  in  the  same 
will  or  statute,  when  they  apply  to  different  descriptions  of  prop- 
erty, "  it  does  not  seem  at  all  consistent  wdtli  principle,"  said 
Lord  Brougam  in  Doe  dem.  Winter  v.  Perratt,  "  that,  in  order  to 
put  a  construction  upon  words,  we  should  take  some  of  them  in  a 
tecnnical,  and  others  in  a  popular  sense,  and  even  the  same  words 
in  a  popular  sense  to  a  certain  extent,  and  a  technical  for  the 
residue."  So,  Lord  Cottenham  observed  in  the  same  case  :  "  It 
does  not  seem  reasonable  to  adopt  the  strict  legal  sense  as  to 
part,  and  the  popular  sense  as  to  any  other  part  of  the  same  de- 
scription." i 

In  Reg.  v.  The  Commissioners  of  the  Poor  Laws,  Holborn 
Union,  LordDenman  says,  "  We  disclaim  altogether  the  assump- 
tion of  any  right  to  assign  different  meanings  to  the  same  words 
in  an  act  of  parliament,  on  the  ground  of  a  supposed  general  in- 
tention in  the  act.  We  think  it  necessary  to  give  a  fair  and  rea- 
sonable construction  to  the  language  used  by  the  legislature  ;  but 
we  are  not  to  assume  the  unwarrantable  liberty  of  var}'ing  that 
constmction  for  the  purpose  of  making  the  act  consistent  with 
any  views  of  our  o^^^l." 

According  to  Yattel,  it  is  by  no  means  a  correct  rule  of  inter- 
pretation, to  construe  the  same  word  in  the  same  sense  wherever 
it  occurs  in  the  same  enactment.  "  It  does  not  follow,"  he  says, 
"  either  logically  or  grammatically,  that,  because  a  word  occurs 
in  one  section  with  a  definite  sense,  that  therefore  the  same  sense 

a  7  T.  E.  589.  b  9  Yes.  197. 

c  19  Ves.  77.  d  12  East.  253. 

e-4M.  &S.  61.  f7A.&E.  G57. 

g  3  Scott,  N,  C.  774.  'h  1  Youngs  &  Collier,  589. 

i  6  M.  &  G.  379. 


190  CONSTRUCTION  OF  WORDS. 

is  to  be  adopted  in  every  otlier  section  in  wliicli  it  occurs.  The 
framers  of  laws  do  not  weigli  only  the  force  of  single  words,  as 
philologists  and  critics,  but  of  whole  clauses  and  designated  ob- 
jects, as  statesmen  and  practical  reasoners.  In  common  language 
the  same  word  has  often  various  meanings."«  '* 

The  peculiar  sense  in  which  a  word  is  used  in  any  section  is  to 
be  determined  by  the"  context. 

Words  used  in  a  consolidation  act  may  have  a  different  mean- 
ing fi'om  that  of  the  same  words  when  used  in  any  of  the  acts 
comprehended,  h  ^' 

If  the  words  of  a  statute  are  plain,  they  must  be  strictly  fol- 
lowed ;  but  if  they  are  ambiguous,  the  whole  context  must  be 
looked  to,  for  their  explanation,  c 

The  correct  rule  is  to  construe  acts  of  parliament  according  to 
their  grammatical  and  natural  sense,  unless  the  context  show 
clearly  that  a  different  sense  was  intended,  d 

a  Yattcl,  Bk.  2,  cli.  17,  §  285. 

h  Per  Coleridge,  J.,  in  Eeg.  v.  Justices  of  Kent,  2  Q.  B.  Kep.  G92. 

c  Per  Lord  Abiuger,  3  A.  &  E.  89G. 

d  Per  Parke,  J.,  R.  v.  Ditclieatt,  9  B.  &  C.  18G. 

Note  14. — The  statutes  of  one  State  or  country,  when  they  become  the  subject 
of  adjudication  in  another,  are  to  receive  the  same  construction  that  is  given  to 
them  in  the  courts  of  the  former.  Elmendorf  v  Ferry  Co.  10  Wheat.  153;  Smith 
V.  Coudry,  1  How.  28. 

Note  15. — In  cases  depending  upon  the  statutes  of  one  of  the  states,  the  lederal 
courts  follow  the  construction  given  to  those  statutes  by  the  State  court.  Especi- 
ally if  the  law  relate  to  real  property.  Polk  v.  Wendal,  9  Cro.  87;  Thatcher  v. 
Powell,  6  Wheat.  119;  McDowell  v.  Peyton,  10  Wheat,  454;  Shelby  v.  Guy,  11 
"Wheat.  367;  Bell  v.  Morrison,  1  Pet.  352;  DeWolf  v.  Eabaud,  id.  47G;  Daws  v. 
Mason,  ib.  503;  Waring  v.  Jackson,  ib.  570;  Gardner  v.  Collins,  2  Pet.  58;  Beach 
V.  Yiles,  ib.  675;  McCluny  v.  Silliman,  3  Pet.  270;  Bk.  of  U.  S,  v.  Daniel,  12  Pet. 
33;  Nesmith  v.  Sheldon,  7  How.  812;  Suydam  v.  Williamson,  24  How.  427.  And 
they  follow  this  rule  also  as  to  the  decisions  of  the  highest  courts  of  the  states, 
whether  it  is  founded  upon  the  constitution  of  a  statute,  or  on  the  unwritten  law 
of  the  state.  St.  John  v.  Chew,  12  Wheat  153;  Bk.  of  Hamilton  v.  Dudley,  2  Pet. 
492;  Henderson  V.  Griffin,  5  Pet.  151;  Boss  v.  McClung,  G  Pet.  283;  Green  v. 
Neal,  ib.  291;  Livingston  v.  Moore,  7  Pet.  542;  Brashear  v.  West.  ib.  G09;  Mc- 
Cutchen  v.  Marshall,  8  Pet.  220;  Murray  v.  Gibson,  15  How.  425;  Beauregard  v. 
N.  Orleans;  18  How.  497;  Sumner  v.  Hicks,  2  Blatch.  532;  East  Hartford  v.  E. 
Hartford  Bridge  Co.,  10  How.  511,  541,  14  id.  489.  And  the  lederal  courts  will 
BO  hold,  though  it  be  not  in  accordance  with  their  own  opinion.  M^Keen  v.  Dc- 
laney,  5  Cranch.  22. 

State  laws  are  rules  of  decision  in  the  federal  courts,  when  they  prescribe  a  law 
governing  the  right  in  litigation;  but  they  do  not  govern  as  to  the  mode  of  pro- 
ceedure.  New  England  Screw  Co.  v.  Bliven,  3  Blatch.  C.C.  240;  Campbell  v. 
Claudius,  Peters  C.  C.   R.  481;  Craig  v.   Brown,   3  W^xsh.  C.  C.  E.  503;  Beers  v. 


CONSTRUCTION   OF  WORDS.  197 

It  is  proper,  first,  to  consider  wliat  is  the  meaning  of  the  words 
used,  in  the  largest  ordinary  sense,  Avhicli,  according  to  the  com- 
mon use  of  language  belongs  to  them.  <i  But  where  words  are  so 
general  that  they  nuist  receive  .some  limitation  in  constniction, 
and  cannot  be  construed  literally,  what  is  the  restriction  that 
ought  to  be  imposed  upon  them  V  This  is  to  be  learned  from  the 
context  and  from  the  general  purview  of  the  act.  The  object  of 
all  rules  of  construction  being  to  ascertain  the  meaning  of  the 
language  used,  and  it  being  unreasonal>le  to  im})ute  to  the  legis- 
lature incon.sistent  intents  upon  tlie  same  general  subject-matter^ 
what  it  has  clearly  said  in  one  part,  must  be  the  best  evidence  of 
what  it  has  intended  to  say  in  another.  The  court  must  apply 
in  such  a  case  the  same  rules  Avliich  it  would  use  in  construing 
the  limitation  of  a  deed ;  it  nmst  look  to  the  whole  context,  anil 
endeavor  to  give  efiect  to  the  provisions,  enlarging  or  restraining, 
if  need  be,  for  that  purpose,  the  literal  interpretation  of  any  par- 
ticular part,  h 

"  The  good  expositor,"  says  Lord  Coke,  "  makes  every  sentence 
have  its  operation  to  suppress  all  the  mischiefs ;  he  gives  effect 
to  every  Avcn-d  in  the  statute  ;  ho  does  not  construe  it  so,  that  any 
thing  should  be  vain  and  superfluous,  nor  yet  makes  exposition 
against  express  words,  for  viperina  est  cxpositio  quce  corrodit  vis- 
cera textus,c  but  so  expounds  it,  that  one  part  of  the  act  may 
agree  with  the  other,  and  all  may  stand  together.  For  the  best 
expositors  of  all  acts  of  parliament,  in  all  cases,  are  the  acts  of 
parliament  themselves, — ^by  construction  and  conferring  all  the 
parts  of  them  together  ;  "  Optima  statin  interprelatrix  est  (omni- 
bus paiiienlis  cjustem.  inspertis,)  ipsum  statidum."  d  All  acts  of 
parliament  shall  bo  taken  by  a  reasonable  construction  to  be  col- 
lected out  of  the  words  of  the  acts  themselves,  according  to  the 
true  intent  and  meaning  of  the  makers."  e 

a  Per  Tiudul,  C.  J.,  5  M.  &  G.  80.     Aud  see  Maule,  J.,  iu  Borradaile  v.  Hunter, 
5  M.  &  G.  G53. 
b  Per  Coleridge,  J.,  G  A.  ctE.  7. 
c  11  Rep.  3-1,  citing  2  liulstr.  179  ;  10  Et-p.  105. 
d  Bonham's  case,  8  Rep.  117.  e  Case  of  Leases,  5  Rep.  C. 

Haughton,  9  Pet.  329;  Keery  v.  Morch.  Bk.,  IG  Pet.  89;  Kelsey  r.  Porsytli,  21 
How.  85. 

A  state  law  wliicli  permits  parties  to  be  examined  as  witnesses  iu  their  own  be- 
half, is  a  rule  of  decision,  and  as  such,  is  obligatory  upon  the  federal  courts. 
Diblee  v.  Furniss,  4  Blatch.  C.  C.  R. 

State  courts  are  bound  by  the  decisions  of  the  federal  court  in  construing  the 
constitution  of  the  United  States,  its  laws,  and  treaties  of  the  Union.  Elmendorf 
V.  Taylor,  10  Wheat.  153. 

The  construction  of  a  state  law  having  been  settled. by  a  series  of  decisions  ol 
the  highest  state  court,  dififerently  from  a  former  decision  of  the  federal  court, 
the  later  construction  of  such  law  by  the  state  court  will  be  followed  by  the  led- 


198  CONSTKUCTION   OF  WORDS. 

It  is  a  safe  iiietliod.  of  interpreting  statutes  to  give  effect  to  the 
particular  Avorcls  of  the  enacting  clauses.  For  when  the  legisla- 
ture in  the  same  sentence  uses  different  words,  the  courts  of  law 
will  presume  that  they  were  used  in  order  to  express  different 
ideas,  a  So,  if  there  be  a  material  alteration  in  the  language 
used  in  the  different  clauses,  it  is  to  be  inferred,  that  the  legisla- 
ture knew  how  to  use  terms  applicable  to  the  subject-matter. 
"  The  several  inditing  and  penning  of  the  different  branches," 
said  the  Judges  in  Edrick's  case,  "doth  argue  that  the  maker  did 
intend  a  difference  of  the  purview  and  remedies."  h 

Again,  when  in  several  statutes  in  pari  maferte,  the  legislature 
is  found  sometimes  inserting  and  sometimes  omitting  a  clause  of 
relation,  it  is  to  be  presumed  that  their  attention  has  been  drawn 
to  the  point,  and  that  the  omission  is  designed,  c 

If  terms  of  art  are  used,  they  are  to  be  taken  in  their  technical 
sense.     Thus,  the   expression   "  heirs  of  the   body  "  conveys  to 

a  E.  V.  Bolton,  8  E.  &  C.  74. 

b  o  Eep.  119. 

c  Moser  v.  Newman,  G  Bing.  5G1. 

eral  conrt.  Green  v.  Xeal,  G  Pet.  291;  Suydam  v.  Williamson,  24  How.  427.  But 
a  circuit  court  of  the  United  States,  having  adopted  the  construction  cf  a  state 
law  placed  upon  it  by  the  state  court,  its  judgment  will  not  be  reversed  because 
the  state  court  subsequently  overruled  its  own  former  decision.  Morgan  v.  Cen- 
tenices,  20  How.  1.  Nor  will  the  federal  court  alter  its  construction  of  a  contract 
deliberately  decided  to  be  a  valid  one,  because  the  state  courts  have  since  declared 
fimilar  contracts  to  be  invalid  under  the  state  constitution.  Eowanv.  Eumul, 
r,  How.  134. 

The  federal  courts  are  not  bound  by  the  construction  placed  upon  a  state  law 
by  the  state  courts,  where  the  question  is  whether  it  be  in  violation  of  the  consti- 
tution. Jefferson  Br.  Bk.  V.  Skelly,  1  Blatch.  43G.  Nor  does  the  federal  court  hold 
itself  bound  by  the  construction  of  a  will  made  by  the  state  court,  unless  it  arise 
from  a  settled  rule  of  property.     Lowe  v.  Vick,  3  How.  4G4. 

The  decisions  of  the  state  courts  as  to  the  construction  of  contracts,  or  on 
questions  of  general  commercial  law,  are  not  binding  on  the  federal  courts. 
Swift  V.  Tyson,  16  Pet.  1;  Donnell  v.  Columbian  Ins.  Co.,  2  Sum.  367;  Thomas  v. 
Hatch,  3  Sum.  367.  Nor  are  the  decisions  of  a  state  court,  construing  a  deed  by 
the  rules  of  a  common  laAv,  binding  on  the  federal  court.  Foxcroft  v.  Mallctt,  4 
How.  3o3;  Thomas  v.  Hatch,  3  Sum.  170. 

The  constitution  and  laws  of  a  state,  so  far  as  they  are  repugnant  to  the  con- 
stitution and  laws  of  the  United  States,  are  absolutely  void.  Cohens  v.  \'irgiuia, 
0  Wheat.  414. 

In  cases  of  concurrent  authority,  when  the  lavv's  of  the  United  States  and  the 
laws  of  a  separate  state  are  in  conflict,  the  state  law  must  yield,  but  only  so  far 
as  the  conflict  extends.     Freeman  v.  Robinson,  7  Ind.  321. 

The  state  courts  are  bound  by  a  decision  of  the  supreme  court  of  the  United 
States,  deciding  that  a  state  law  is  in  violation  of  the  constitution  of  the  United 
States     Guroot  v.  Lnfferty,  2  Gilman  383. 


CONSTRUCTION  OF  WOllDS.  199 

)awyers  a  precise  idea,  as  comprising,  in  a  legal  sense,  only  cer- 
tain lineal  descendants. 

It  is  a  rule  of  construction,  njiuided  in  reason  and  suppoiied 
i.\y  many  authorities,  that  words  in  a  -svill,  or  statute,  are  to  bo 
construed  according  to  their  strict  and  proper  acceptation,  unless 
there  be  something  to  show  that  wucli  a  ccmstniction  is  not  in- 
tended. Words  of  known  legal  import  are  to  Ije  considered  as 
having  been  used  in  their  technical  sense,  or  according  to  their 
strict  acceptation,  unless  there  appear  a  manifest  intention  of 
using  them  in  their  pojjular  sense,  a  Thus,  an  heir,  properly  and 
strictly,  means  a  jjcrson  -whose  ancestor  is  dead,  nemo  est  /loeres 
viventis  ;  but  the  famihar  expressions,  "heir  to  the  throne,"  "heir 
to  a  title," — "heir  aj)parent," — " heir  presumptive," — "prove," 
said  Lord  Cottenham,  in  Doedem.  AVinter  v.  Perratt,  "  that  the 
existence  of  a  parent  is  quite  consistent  with  the  popular  idea  of 
heirship  in  the  child ;  and  an  heir  apparent  may  take  under  the 
description  of  heir,  if  that  be  the  sense  in  which  the  testator  used 
the  term."  6 

Words  may  be  transposed  in  construction,  c  or  words  may  be 
interposed,  or  read  as  if  in  a  parenthesis  ;  c?  the  word  "  or"  may  bo 
read  "  and  ;"  and  in  the  interpretation  of  both  statutes  and  wills, 
"  if"  may  be  expounded  "  when  ;•"  as  in  the  rule  on  legacies  bor- 
rowed fi'om  the  civil  law,  where  cum  and  si  are  precisely  equiva- 
lent. '' 

Words  cannot  be  inserted  ;  "Every  day,"  said  Patteson,  J.,  in 
a  late  case,  "  I  see  the  necessity  of  not  importing  into  statutes, 
words  which  are  not  to  be  found  tliere.  Such  a  mode  of  inter- 
pretation only  gives  occasion  to  endless  difficulties."  e  In  Lamond 
v.  Eifie,  /'  Lord  Denman  said,  "  AVe  are  requu-ed  to  add  some 
arbitrary  words  to  the  section,  which  would  exclude  us  from  act- 
ing in  certain  cases.  We  cannot  introduce  any  such  quahj&ca- 
tions ;  and  I  cannot  help  thinknig  that  the  introduction  of  quah- 

a  Poole  V.  Poole,  3  B.  &  P.  G20,  per  Lord  Alvanlej'.     Jesson  v.  "Wrigbt,  2  Bligh, 
per  Lord  Redesdale. 
b  6  M.  &.  G.  379  ;  1  P.  Wins.  229  ;  2  W.  Bl.  1010. 
(,•  Stacey  v.  Nelson,  12  Mees.  &  W.  541. 
d  Davey  V.  Warren,  14  Mees.  &  W.  207. 
e  King  v.  Burrell,  12  A.  &  E.  4G8.  /  3  Q.  B.  Eep.  910. 

XoTE  16 — The  word  or,  in  its  ordinarj'  signification,  corresponds  to  the  word 
and,  and  equally  to  each  if  the  sense  of  the  statute  requires  it,  but  not  to  both. 
It  has  sometimes  been  construed  to  mean  and,  in  order  to  give  effect  to  a  clause 
in  a  statute,  will,  or  contract;  but  never  to  change  a  contract  at  pleasure.  The 
inaccuracy  of  using  and  for  or,  requires  that  there  should  be  strong  reasons,  in 
conformity  with  a  clear  intention.  But  or  has  been  changed,  or  removed,  and  and 
substituted  in  its  place.  Douglass  v.  Eyre,  Gilp.  E.  149;  Compare  United  States 
V.  Ilann,  Amer.  Law  Keg.  663.  But  in  a  penal  statute,  it  has  been  held  that  the 
word  and  cannot  be  substituted,  and  construed  to  mean  or.  United  States  v.  Ten 
Cases  of  Shawls,  2  Paine.  C.  C.  R.  166. 


200  CONSTEUCTION  OF  WORDS. 

fying  words  in  the  mtei*pretation  of  statutes  is  frequently  a  great 
reproach  to  the  law,  Kone  of  the  distinctions  suggested  are  con- 
tained in  the  plain  words  of  the  act ;  and  we  cannot  qualify  them 
by  any  arbitrary  introductions."  So,  in  Everett  and  Mills,  a  Tin- 
dal,  C.  J.,  said,  "It  is  the  duty  of  all  courts  to  confine  themselves 
to  the  words  of  the  legislature;  notJibuj  adding  thereto,  nothing 
diminishing.  "\Ye  must  not  import  into  an  act  a  condition  or 
qualification  which  we  do  not  find  there." 

The  enabling  statute,  11  Hen.  7,  c.  12,  entitled,  "A  Mean  to 
Help  and  Speed  Poor  Persons  in  their  suits,"  admits  a  plaintiff 
to  sue  in  forma  pauperis.  It  does  not  say  he  shall  be  admitted 
before  he  comm'ences  his  suit,  and  therefore  the  court  of  common 
pleas  (dift'ering  from  Lord  Abinger's  inclination,  rather  than  deci- 
sion in  the  Exchequer,)  "  would  not  say  it,  when  the  act  did  not."  & 

It  had  been  supposed,  that,  under  stat.  5  Ehz.  c.  4,  s.  3(5,  justi- 
ces might  not  only  order  the  discharge  of  an  apprentice  from  his 
apprenticeship,  but  might  also  order  a  restitution  of  the  premium 
or  any  part  of  it ;  but  in  the  case  pi  Pt.  v.  Vandeleur,  c  the  court 
(although  reluctantly,  on  the  ground  that  it  would  be  an  encour- 
agement to  masters  to  illtreat  their  apprentices)  held,  that  the 
statute  being  silent,  the  order,  directing  a  return  of  the  premium, 
must  be  cpashed.  And  the  same  was  held  in  a  modern  case  in 
the  Court  of  Exchequer,  East  v.  Pell.t?  "  The  court  cannot  insert 
or  leave  out  words ;"  P.  v.  Pereira.  e 

But  in  one  case.  In  re  Scott,  upon  the  9  Geo.  4,  c.  32,  the  words 
"  within  three  months  after  the  determination  of  such  petition," 
were  qualified  in  construction,  to  mean  if  such  determination  shoidd 
take  place,  {expressio  eorum  quoe.  tacite  insnni  ;)  the  court,  in  that 
case,  modifying  the  language  of  the  section,  as  a  construction  most 
consistent  with  the  object  of  the  legislature,  and  as  giving  effect 
to  every  enactment  of  the  statute.  /' 

For,  the  words  of  an  act  are,  it  is  always  said,  to  be  modified 
by  reference  to  the  subject  about  which  it  is  conversant. " 

"  In  construing  an  act  of  parliament,  the  same  rule  of  construc- 
tion must  be  applied  as  in  the  construction  of  other  writings  ;  and 
if  the  subject-matter  to  which  an  act  of  parliament  applies,  be  such 
as  to  make  a  given  construction  of  its  clauses  impossible  or  irra- 
tional, I  cannot,"  said  WigTam,  V.  C.,f/  "for  a  moment,  doubt  the 

a  4  Scott.  N.  C.  531.  h  Brunei  v.  -Wardle,  4  Scott,  N  C.  188. 

c  1  Str.  GO.  d  4  M.  &  W.  GG5. 

e  2  A.  &  E.  375.  /  4  M.  &  W.  2G1. 

g  Salkeld  v.  Johnston,  1  Hare,  210. 

Note  17. — The  general  rule,  however,  is,  that  wojrds  are  to  be  received  and  in- 
terpreted according  to  their  common  or  popular  imjiort,  or  their  plain  and  ac- 
tual meaning,  and  in  such  a  way  as  to  carry  into  effect,  if  possible,  the  whole  of 
the  statute,  Maillard  v.  Lawrence,  IG  IIow.  U.  S.  E.  2G0-1;  Wiggv.  United 
States,  Dev.  157,  (Court  of  Claims  1855-6;)  Chase  v.  Same,  id.  158. 


CONSTRUCTION  OF  WORDS.  201 

right,  or  the  duty,  of  a  court,  to  have  regard  to  such  subject-mat- 
ter, as  necessarily  bearing  upon  the  legal  construction  of  the  act. 
This  is  invariably  done  in  the  construction  of  -wlUs  and  deeds  ; 
and  the  same  principles  are  correctly  apphcable  to  the  construc- 
tion of  an  act  of  i)arhament." 

In  construing  the  words  of  an  act  of  Parliament,  and  collecting 
from  them  the  intentions  of  the  legislatm-e,  the  terms  are  always 
to  be  understood  as  having  a  regard  to  the  subject-matter ;  lor 
that,  it  is  to  be  remembered,  will  always  be  in  the  eye  of  the  fra- 
mer  of  the  law,  and  all  his  expressions  directed  to  that  end. '" 
Thus  the  term  "  maintenance,"  is,  in  itself  and  abstractedly,  equi- 
vocal ;  but  when  we  find  the  statutes  in  which  it  occurs,  a  du'ected 
against  the  encouragement  of  litigation,  and  the  upholdmg  of 
parties  to  suits,  we  easily  perceive  what  was  designed  to  be  pre- 
vented. The  same  with  the  terms,  "evil  procurers  of  dozens," 
upon  which  many  fancifid  interpretations  might  be  put,  as  of 
dozens  of  wine,  &c. ;  yet  in  a  statute  relating  to  juries,  there  is 
no  dithculty  in  untlerstanding  that  the  persons  meant  are  "  u/Aler- 
hand  instructors,  n.ud  leaders  of  jurors  returned."  Malveifi  jjro- 
curers  des  douseius,  is  "imderstood  of  such,  as  use  to  pack  'in'ies 
by  nomination.or  other  practice."  h 

80,  where  the  term  "  English  money"  is  used  in  the  sliitutes 
of  employments,  which  relate  to  the  circulation  and  employment 
of  money  with  which  "  the  stranger  who  brings  merchandize  into 
the  realms  of  England,  is  to  be  paid  and  contented  in  hand,  and 
to  bestow  the  same  money  upon  other  merchandizes  of  England  : " 
— the  design  and  policy  considered,  it  becomes  clear,  that  what 
is  intended,  is  all  money  current  within  England,  although  not 
corned  in  England,  c 

Other  trades  of  skill  and  knowledge,  besides  those  which  are 
enumerated  in  the  stat.  5  EHz.  c.  4,  are  held  within  it,  if  they  were 
in  use  at  the  time;  although  the  act  being  in  restraint  of  the  com- 
mon law,  is,  in  other  respects,  construed  strictly. 

"  I  think,"  said  Maule,  J.,  in  Dewhurst,  appellant,  and  FiokUn, 

a  West.  1,  c.  25  ;  "West.  2,  c.  43  ;  Artie,  sup.  Chartas,  cap.  11. 
b  Articuli  super  Chartas,  cap.  x.  ;  2  lust.  561. 
c  2  Inst.  741. 

Note  18. — Whenever  any  words  of  a  statute  are  doubtful  or  obscure,  the  inten- 
tion of  tho  legislature  is  to  be  resorted  to,  in  order  to  find  the  meaning  of  the 
^YO^ds.  Tho  meaning  of  the  legislature  may  be  extended  beyond  the  precise 
■words  used  in  the  law,  from  the  reason  or  motive  upon  which  the  legislature  pro- 
ceeded,— from  tho  end  in  view, — or  tho  purpose  which  was  designed  ;  the  limita- 
tion of  the  rule  being,  that  to  extend  the  meaning  to  any  case  not  included  in  the 
words,  the  case  must  be  shown  to  come  within  the  same  reason  upon  which  the 
lawmaker  proceeded  ;  and  not  only  within  a  like  reason.  United  States  v.  Free- 
man, 3  How.  U.  S.  K.  565. 

26 


202  CONSTRUCTION   OF  T\OEDS. 

respondent,  a  "  we  should  not  in  these  appeals  (registration  cases), 
emban-ass  ourselves  with  the  decisions  on  settlement  cases.  I 
also  think  it  would  be  convenient  that  we  should  be  spared  dis- 
cussions upon  the  tenement  acts,  which  are  not  at  all  analogous 
to  the  reform  and  registration  acts," 

As  regard  must  alwaj-s  be  had  to  the  subject-matter ;  so,  in 
constiTLUig  a  statute,  wc  must  never  lose  sight  of  its  object  and 
intent.  Provisions  in  acts  of  Parhament  are  to  be  expounded 
according  to  the  ordinary  sense  of  the  words,  unless  such  con- 
struction" would  lead  to  some  unreasonable  result,  or  be  inconsis- 
tent with,  or  contrary  to,  the  declared  or  implied  intention  of  the 
framer  of  the  law ;  in  which  case  the  grammatical  sense  of  the 
words  may  be  modified,  restricted  or  extended,  to  meet  the  plain 
policy  and  purview  of  the  act.  But,  in  such  case,  the  intent  must 
be  obvious,  and  must  be  collected  from  the  words  of  the  act. " 
"  The  court,"  said  Coleridge,  J.,  b  "  will  not  attempt  to  mould  the 
language  of  an  act  for  the  sake  of  an  apparent  convenience,  with- 
out the  clearest  evidence  of  a  corresponding  intention  in  the  legis- 
lature." In  another  place,  c  the  same  learned  judge  observed  : 
"  If  I  thought  the  construction  w^e  are  adopting  put  any  force  on 
the  meaning  of  the  act,  I  should  be  the  last  to  concur  in  it ;  for 
the  longer  I  sit  here  the  more  I  feel  the  importance  of  seeking 
only  the  meaning  of  a  statute  according  to  a  fair  interpretation 
of  the  words,  and  acting  upon  that."  Again  :d  "it  is,  m  my 
opinion,  so  important  for  the  court,  in  construing  modern  statutes 
to  act  upon  the  principle  of  giving  full  effect  to  their  language, 
and  of  declining  to  mould  that  language,  in  order  to  meet  either 
an  alleged  convenience  or  an  alleged  equity,  upon  doubtful  evid- 
ence of  intention,  that  nothing  will  induce  me  to  withdraw  a  case 

a  Scott's  New  Cases,  vol.  8,  p.  1013  ;  7  M.  &  Gr.  187. 

6  6A.&E.  p.7.  c  Riicl.  cZ  Ibid. 

Note  19. — The  -whole  spirit,  as  well  as  the  letter  of  a  statute  must  be  respected, 
and  when  the  whole  context  of  the  law  demonstrates  a  particular  intent  of  the 
legislature  to  effect  a  certain  object,  some  degree  of  implication  may  be  called  in 
to  aid  that  intent.  Dorousseau  v.  United  States,  6  Cranch.  314,  323.  But  the 
statute  is  always  to  be  so  construed  that  it  may  have  a  reasonable  effect,  agree- 
ably to  the  intent  of  the  legislature,  especially  if  the  language  is  obscure.  Gore 
V.  Brazier,  3  Mass.  539,  540  ;  opinion  of  Justices  22  Pick.  573.  Richards  v.  Dag- 
gett, 4  Mass.  537  ;  and  it  is  always  to  be  presumed  that  the  legislature  have  in- 
tended the  most  reasonable  and  beneficial  construction  of  their  acts,  if  the  words 
of  the  act  are  not  precise  and  clear.  Pearce  v.  Atwood,  13  Mass.  343,  and  such 
construction  will  be  adopted  as  appears  most  reasonable,  and  best  suited  to  ac- 
comjjlish  the  objects  of  the  statute;  and  where  any  particular  construction  would 
lead  to  an  absurd  consequence,  it  will  be  presumed  that  some  exception  or  quali- 
fication was  intended  by  the  legislature  to  avoid  such  conclusion.  Commonwealth 
V.  Kimball,  24  Pick.  370. 


CONSTRUCTION  OF  WORDS.  203 

from  the  operation  of  a  section,  wliicli  is  widiin  its  words,  but 
clear  and  iinanibigous  evidence,  but  so  to  do  is  to  fulfil  the  general 
intent  of  tlic  statute,  and  also  that  to  adhere  to  the  literal  inter- 
pretation, is  to  decide  inconsistently  with  (jther  and  overruling 
provisions  of  the  same  statute." 

It  has  been  hitherto  propounded,  that  words  are  to  be  taken 
in  their  ordinary  sense  ;  it  now  requires  to  be  added :  And  not  to 
bo  extended  beyond  it,  to  comprehend  a  case  within  the  supposed 
meaning  of  the  legislature,  -" 

In  interpreting  the  law,  judges  are  to  explore  the  intentions  ol 
the  legislature ;  yet  the  construction  to  be  put  upon  an  act  oJ 
parhament  nuist  be  such  as  is  warranted  by,  or  at  least  not  re- 
pugnant to,  the  Avords  of  the  act.  Where  the  object  of  the  legis- 
lature is  plain  and  unequivocal,  courts  ought,  without  violence  to 
the  words,  to  adt)pt  such  a  construction  as  will  best  effectuate  the 
intentions  of  the  lawgiver.     But  they   must  not,  in  order  to  give 

Note  20. — The  avoi-Js  of  a  statute,  if  of  common  use,  i\Te  to  be  taken  in  theii 
natural,  plain,  obvious  and  ordinary  signification;  audit  is  an  established  rule 
in  giving  constructiun  to  a  statute,  lirst,  to  ascertain  its  intent.  This  may  be  de- 
termined from  the  language  of  the  whole,  and  every  part  of  the  statute;  and  some- 
times from  the  cause  or  necessity  of  making  the  statute.  "When  ascertained,  it 
should  be  followed  with  reason  and  discretion;  though  such  construction  may 
seem  contrary  to  the  letter  of  the  statute,  for  it  is  the  intent  which  often  gives 
meaning  to  words  otherwise  obscure  and  doubtful.  A  thing  which  is  within  the 
intention  of  the  makers  of  a  statute,  is  as  much  within  the  statute  as  if  it  v.'er€ 
within  the  letter;  and  a  thing  which  is  within  the  letter,  is  not -within  the  statute, 
unless  it  be  within  the  intention  of  the  makers.  Holmes  v.  Carley,  31  N.  Y.  K. 
290;  Chase  v.  N.  Y.  C.  E.  E.  Co.  26  N.  Y.  523.  But  all  the  provisions  of  th( 
statute  to  this  end,  should  be  taken  into  consideration,  and  no  interpretatioi: 
should  be  given  confined  to  a  part  of  the  statute,  or  to  a  separate  section  alone. 
Newell  V.  The  People,  7  N.  Y.  E.  97. 

A  construction  which  is  contrary  to  natural  justice  and  equitj',  or  which  wili 
be  necessarily  productive  of  practical  inconvenience  to  the  community,  is  to  be 
rejected,  unless  the  language  of  the  lawgiver  is  bo  plain  as  not  to  admit  of  a  dif- 
ferent construction.  To  give  a  correct  interpretation  to  the  legislative  will,  where 
a  statute  was  intended  to  remedy  the  injurious  operation  of  a  previous  rule  oi 
principle  of  law,  the  court  should  place  itself  in  the  situation  of  the  legislature 
which  passed  the  statute;  that  is,  to  contemplate  in  the  first  place,  the  law  as  it 
previously  existed,  and  the  necessity  and  probable  object  of  the  change,  and  then 
give  such  construction  to  the  language  used  by  the  lawmakers  in  providing  the 
remedy,  as  to  carry  their  intention  into  eflect,  so  far  as  it  can  be  ascertained  from 
the  terms  of  the  statute  itself.  Opinion  of  Chan.  "Walworth  in  Court  of  Errors; 
Donaldson  v.  Wood,  22  "Wend.  397. 

Statutes  tending  to  effect  an  object  of  great  public  utility,  ought  to  receive  the 
most  liberal  and  benign  interpretation,  in  accordance  with  the  maxim  id  res  magis 
vc.leat  quam  pereit.     Baring  v.  Erdman,  Hazards  Penn.  Eeg.     The  court  in  such 


20i  CONSTEUCTION  OF  -WORDS. 

eifect  to  what  tliey  may  suppose  to  be  the  intention  of  the  legisla- 
ture, put  upon  the  provisions  of  a  statute  a  constiTiction  not  sup- 
ported by  the  Avords,  though  the  consequence  should  be  to  defeat 
the  object  of  the  act.  a  AVhere  the  legislature  has  used  words  of 
a  plain  and  definite  import,  it  would  be  very  dangerous  to  put 
upon  them  a  construction  which  would  amount  to  holding  that 
the  legislature  did  not  mean  what  it  has  expressed.  The  fittest 
course  in  all  cases  Avhere  the  intention  of  the  legislature  is  brought 
into  question,  is  to  adhere  to  the  words  of  the  statute,  construing 
them  according  to  their  natural  import,  in  the  order  in  which  they 
stand  in  the  act  of  parliament,  b  The  most  enlightened  and  ex- 
perienced judges  have  for  some  time  lamented  the  too  frequent 
departure  from  the  plain  and  obvious  meaning  of  the  words  of 
the  act  of  parliament  by  which  a  case  is  governed,  and  themselves 
hold  it  much  the  safer  course  to  adhere  to  the  words  of  the  statute 
construed  in  their  ordinary  import,  than  to  enter  into  any  in- 
quiry as  to  the  supposed  intention  of  the  parties  who  fi'amed  the 
act.  c  They  are  not  (as  the  most  learned  members  of  a  learned 
body  best  know),  to  presume  the  intentions  of  the  legislature,  but 
to  collect  tJiem  from  the  words  of  the  act  of  parhament ;  and  they 
have  nothing  to  do  with  the  policy  of  the  law.  This  is  the  true 
sense  in  which  it  is  so  often  impressively  repeated,  that  judges  are 
not  to  construe  statutes  by  equity,  or  views  of  policy,  but  to  col- 
lect the  sense  of  the  legislature  by  a  sound  interpretation  of  its 
language,  according  to  reason  and  grammatical  correctness. 

In  the  case  of  Green  v.  Wood,  in  the  very  latest  number  of  the 
Queen's  Bench  Keports,  cl  Lord  Denman  said :  "  We  are  bound  to 
give  to  the  acts  of  the  legislature  all  possible  meaning,  which  is 
consistent  with  the  clear  language  used.  But  if  we  find  language 
used  which  is  incapable  of  a  meaning,  we  cannot  supply  one.  It 
is  tnie  that  the  words,  as  they  stand,  are  useless,  (a  case,  perhaps, 
not  infi'equent.)  It  is  extremely  probable  that  the  alteration  sug- 
gested would  express  what  the  legislature  meant ;  but  we,  look- 
ing at  the  words,  as  judges,  are  no  more  justified  to  introduce 

a  Rex  V.  Stoke  Damerel,  7  B.  &  C.  569.         h  Rex  v.  Ramsgate,  6  B.  &  C.  712. 
c  Rex  V.  Inhabitants  of  Great  Bentley,  10  B.  &  C.  527. 
tZ  7  Q.  B.  Rep.  178. 

case,  will  look  into  the  object  of  passing  the  law,  and  if  it  can  be  discovered  in 
its  provisions,  will  not  suffer  it  to  be  defeated.     Russel  v.  Wheeler,  Hemp.  R.  3. 

Where  a  limited  jurisdiction  is  conferred  by  statutes,  the  construction  ought  to 
be  strict  as  to  the  extent  of  jurisdiction;  but  liberal  as  to  the  mode  of  proceeding. 
Russel  V.  Wheeler,  Hemp.  R.  3. 

AVords  intending  to  limit  the  powers  of  a  corporation,  cannot  be  construed  to 
describe  and  so  limit  the  rights  of  the  public.  Ferine  v.  Ches.  &  Del.  Canal  Co., 
9  How.  172. 

A  limitation  of  authority  in  a  statute  by  a  proviso,  is  a  negp.tion  thereof.  Com- 
missioners v.  Keith,  2Barr.  218. 


CONSTRUCTION  OF  WORDS.  205 

that  meaning,  than  "wo  should  be  it"  we  added  any  other  provi- 
sions. Wo  can  do  no  more  than  give  such  a  meaning  as  the  words 
authorize." 

In  Sanniol  v.  Nettleship,  a  Patteson,  J.,  said  :  "  I  cannot  specu- 
late as  to  the  intentions  of  the  legislature  :  the  words  a])peiir  to 
me  to  be  quite  plain." 

The  rule  that  words  iire  to  be  taken  in  their  ordinary  sense,  and 
not  extended  to  comprehend  cases  within  the  supposed  intention 
of  the  legislature,  admits  of  some  exceptions. 

And  tirst,  in  the  case  of  ancient  statutes  ;  Avliich  were  accus- 
tomed, in  the  fewest  words,  to  proi)ound  rules  of  the  utmost  pos- 
sible generality.  The  rule  and  unbending  character  of  these  in- 
discriminate, general,  rules  of  written  law,  constantly  required 
mitigation.  It  received  it  through  the  medium  of  judicial  con- 
struction. Pemberton,  C.  J.,  boasted  that  he  had,  since  he  was 
born,  for  his  o^\^^  share,  made  more  law  than  King,  Lords,  and 
Commons.  And,  whatever  may  be  said  of  judge-made  law  at 
])resent,  when  legislation  is  specific  and  difiuse,  and  aims  at  pro- 
viding for  every  variety  of  case,  there  can  be  no  doubt  of  the 
valuable  improvements  introduced  by  the  judges  at  an  earher 
period  of  our  history,  Avhen  short  statutory  rules  of  universal 
operation,  were  found  so  harsh  and  unjust,  as  to  make  it  indis- 
])ensable  for  the  judges,  in  such  manner  to  modify  and  adjust  the 
general  rule,  as  to  make  it  include  particular  cases — within  the 
mischief,  but  perhaps  opposed  to  the  expressions  of  the  law.  -' 
Speculative  men  complain  of  the  unwritten  law,  and  of  the  cap- 
ricioiisness  and  uncertainty  of  judge-made  law ;  it  may  always 
be  doubtful,  whether  more  is  not,  necessarily,  left  to  inference, 
under  a  rule  of  very  extensive  and  remote  generahties. 

The  extending  a  statute  to  advance  the  remedy  contrary  to  the 
letter  of  an  enactment,  has  been  said,  it  will  be  remembered,  to 
be  applicable  to  old  statutes  only,  which  were  shortly  worded.  In 
Gwynn  v.  Burrell,  h  Lord  Brougham  said :  "  The  extreme  con- 
ciseness of  an  ancient  statute  was  the  sole  ground  for  the  sort  of 
legislative  inteipretation  put  upon  the  words."  In  another  case, 
it  was  said,  "  Considering  the  concise  language  of  statutes  of  an 

o  3  Q.  B.  Tiep.  188.  h  1  Scott,  N.  C.  810 

Note  21. — The  natural  aud  obvious  iiieauing  should  be  taken,  •without  resorting 
to  subtle  and  forced  construction.  Courts  cannot  correct  supposed  errors,  omis- 
sions or  defects.  The  office  of  interpretation  is  to  bring  a  sense  out  of  the  words 
and  not  to  bring  a  sense  into  them.  Though  the  spirit  of  a  law  may  be  referred 
to  in  order  to  interpret  words  admitting  of  two  meanings  ;  but  never  to  extend  ft 
liiw  to  a  case  not  within  its  fair  meanings.  Bcebe  v.  Griffin,  14  N.  Y.,  211:  ;  Mc- 
Chiskoy  V.  Cromwell,  11  N.  Y.,  593.  Statutes  made  relating  to  the  administration 
of  justice,  are  to  receive  liberal  construction  for  the  attainment  of  that  important 
object.    Mitchell  v.  Mitchell,  1  Gill.  66. 


206  CONSTEUCTION   OF  WORDS. 

early  period,  it  seems  to  be  considered  that  tliey  ought  to  receive 
an  enlarged  construction."  a  In  Eeg.  v.  Frost,  b  Lord  Abinger 
said  :  "  More  than  a  himdred  years  ago,  acts  of  Parliament  were 
very  short,  and  were  to  bo  applied  to  a  variety  of  cases.  It  is 
said  that  we  now  construe  acts  of  Parliament  more  literally  than 
judges  did  formerly,  and  perhaps  that  is  so.  Now,  they  are  very 
long  (and  variously  elaborated  and  embellished,  etc.),  but  still  some' 
of  them,  if  construed  literally,  would  lead  to  much  absurdity." 

So,  in  Patrick  v.  Stubbs,  Lord  Abinger  said  :  "  I  never  doubted 
that  Lord  Coke  was  right,  when  he  says  of  the  stat.  Westminster 
2,  '  Here  be  five  kinds  of  improvments  expressed,  and  these  five 
knids  are  put  for  examples  ;  and  besides  these  enumerated,  there 
may  be  others,  and  yet  it  is  not  within  the  letter  of  the  law.' 
And  his  observations  apply  to  several  ancient  statutes,  the  fra- 
mers  of  which  were  not  so  prolific  of  words  as  the  authors  of  mo- 
dern acts  of  Parhament.  In  the  present  day,  in  framing  a  statute 
the  course  is  to  employ  all  the  rhetoric  of  conveyancers  and  special 
pleaders,  and  to  provide  for  every  case  that  suggests  itself  to  the 
imagination  of  the  person  who  draws  the  act.  Formerly  it  was 
otherwise,  and  courts  of  law  were  left  to  interpret  the  meaning 
of  the  legislature."  c 

"  Sometimes,"  says  Lord  Coke,  "  the  makers  of  a  statute  put 
the  strongest  case,  and  by  construction  the  lesser  shall  be  included. 
In  these  cases  they  are  put  by  way  of  example,  and  not  as  ex- 
cluding other  things  of  a  similar  nature.  Thus,  in  the  statute  of 
Gloucester  ;  trespass,  (as  has  been  held  by  construction,)  is  put 
for  debt,  detinue,  and  covenant ;  so,  county  court  for  hundred 
court  and  court  baron  ;  so,  father  for  mother,"  &c.  d 

Sometimes  things  or  places  are  named  for  excellency  ;  as  Lon- 
don, of  cities  and  burghs  privileged  ;  Thames,  of  rivers,  &c.  This 
generality  of  expression  induces  an  imphcation  of  other  particu- 
lars not  expressed. 

At  an  earlier  period.  Lord  EUenborough  thus  expressed  liim- 
Belf,  speaking  of  an  ancient  statute  :  "  That,  it  must  be  remem- 
bered, is  a  very  ancient  statute,  passed  at  a  period  when  no  gTeat 
precision  of  language  prevailed.  Where  words  are  general  and 
loose,  they  will  admit  of  a  more  extended  construction ;  when 
they  are  precise,  they  exclude  it."  "  In  construing  ancient  stat- 
utes," said  Lawrence,  J.,  "  attention  is  always  to  be  paid  to  the 
language  of  the  times."  e 

"  Old  acts  of  parliament,"  said  Coleridge,  J.,  in  a  case  before 
cited,  "  are  framed  with  generahty  and  conciseness.  In  modern 
statutes,  the  legislature  is  careful  to  express  aU  it  intends,  in  so 
many  words,  that  to  go  beyond  their  necessary  implication  is  to 

a  Williams  v.  Wilcock,  C  A.  &  E.  335.  b  9  Carr.  &  P.  129. 

c  9  IL  &  W.  830.  d  Co.  Comm.,stat.  Gloucester,  c.ll. 

e  7  East,  134. 


CONSTRUCTION  OP  WORDS.  207 

make,  and  not  to  interpret  law."  a  In  another  case  he  says,  "  In 
a  modem  act,  and  one  so  full  of  words  as  this,  the  literal  con- 
struction is  the  safe  one."  b 

The  second  exception  is,  where  there  will  be  absurdity,  incon- 
venience, and  injustice,  in  giving  efl'cct  to  the  plain  words  of  the 
act.  For  words  are  to  be  construed  "  accorduig  to  grammatical 
construction,  avoiding  absurdity."  c 

First,  "  the  graniniatical  sense  of  the  words  used,  should  be  ad- 
hered to ;  but  if  that  bo  contrary  to,  or  inconsistent  with,  any 
declared  purpose  of  the  statute,  or  involve  any  inconsistency  or 
absurdity,  the  grammatical  sense  must  be  modified  so  far  as  to 
avoid  inconveniences,  d 

"  No  interpretation  can  be  admitted  which  is  inconsistent  with 
the  language  of  the  act  fairly  understood,  and  considered  with 
reference  to  the  previous  state  of  the  law ;  nor  any  which,  al- 
though consistent  with  the  Avords  used,  cannot  give  them  some 
reasonable  operation."  c 

In  Perry  v.  Skinner,  /'  Parke,  13.,  said  :  "  The  rule  by  which  we 
are  to  be  guided,  is  to  look  at  the  precise  words  and  to  constnie 
tliem  in  their  ordinary  sense,  unless  it  would  lead  to  any  absur- 
dity or  manifest  injustice  ;  and  if  it  should,  so  to  vary  and  modify 
them  as  to  avoid  tliat  which  certainly  could  not  have  been  the 
intention  of  the  legislature.  "We  must  put  a  reasonable  constnic- 
ti.on  upon  their  words." 

The  determination  of  the  judges  in  Edrick's  case,  g  is  very  de- 
-  rving  of  attention.  "  And  the  Judges  said  :  They  ought  not 
(.:•>  make  any  construction  against  the  express  letter  of  the  stat- 
w'w  ;  for  nothing  can  so  express  the  meaning  of  the  makers  of  an 
;ic-t,  as  their  own  direct  words,  for  index  animi  scrmo.  And  it 
would  be  dangerous  to  give  scope  to  make  a  construction  in  any 
(;ase  against  the  express  words,  when  the  meaning  of  the  makers 
doth  not  appear  to  the  contrary,  and  when  no  inconvenience  will 
thereupoii  follow  ; "  and  therefore,  in  such  cases,  ^' a  verbis  legis 
noil  est  reddendum^ — "  Divinatio  est,  non  interpret  at  io,  quce  omnino 
rci'cdit  a  litcra." 

"  The  right  rule  of  construction  is  to  intend  the  legislature  to 
have  meant  what  they  have  actually  expressed,  unless  some  man- 
ifest incongruity  would  result  from  doing  so,  or  unless  the  con- 
text clearly  shows  that  such  a  construction  would  not  be  the  righl 
one."  A  " 

a  Gwyun  v.  Burroll,  2  Scott,  N.  C.  IG.  c  Per  Parke.  B. 

.'<  Pteg.  V.  Eose,  6  Q.  B.  Eep.  157.  e  Per  Coleridge,  J. 

./  Per  Alderson,  B  ;  Keg.  v.  Frost,  9  Carr.  &  P.  129. 

f  2  JI.  <t  'W.  471  ;  and  .see  Stocker  v.  "Warner,  1  Q.  B.  Eep.  14S. 

(I  8ee  Butler  and  Baker's  case,  3  Eep.  27  ;  Edrich's  case,  5  Co.  p.  118. 

/*  Per  Parke,  J.,  E.  v.  Inhabitants  of  Banbury,  1  A.  <fc  E.  1-12. 

Note  22. — ^TVhen  a  statute  is  expressed  in  clear  and  precise  terms,  when  the 
sense  is  manifest  and  leads  to  nothing  absurd,  there  can  be  no  reason  to  refuse 


208  CONSTEUCTION  OF  WORDS. 

The  fii-st  question  to  be  asked,  is,  whether  the  words  used  in  an 
act  of  parUament  have  a  clear  and  intelligible  sense  and  mean- 
ing? All  acts  of  parliament  are  to  be  constraed  according  to 
their  exact  meaning,  if  they  have  any  which  can  be  discovered ; 
unless  that  construction  would  lead  to  some  manifest  absurdity. 
But  where  the  meaning  is  ambiguous  ;  where  the  clauses  are  con- 
fused and  contradictory,  and  the  words  such  as  admit  of  two  sen- 
ses ;  the  court  will  adopt  that  construction  which  will  best  carry 
the  just  and  reasonable  intention  of  the  legislature  into  effect. 

In  Frost's  case,  the  question  was,  whether  the  words,  "at  the 
same  time,"_in  the  statute,  meant  simnl  et  semel ;  at  the  same  in- 
stant; or  within  the  same  interval  of  time.  The  delivery  of  the 
lists  required,  had,  in  point  of  fact,  been  made  within  tlie  time 
i-eqaired  (ten  days,)  but  not  mio  Jlutu  with  other  instruments.  It 
was  contended,  on  the  part  of  the  crown,  that  the  words  admit- 
ting of  two  interpretations,  that  construction  should  be  adopted 
nhich  would  best  effectuate  the  intention  of  the  legislature, — 
that  a  mere  literal  interi)retation  would  lead  to  inconvenient  con- 
sequences. On  the  other  side,  it  was  urged  that  there  was  no 
absui'dity,  to  which  the  language  could  lead  ;  and  therefore  that 
the  court  was  bound  to  obey  the  plain  language  of  the  act.  The 
judges  were  divided  in  o])inion  upon  the  point,  a 

"Where  words  conflict  with  each  other,"  says  Story,  h  "where 
the_  different  clauses  of  an  act  bear  upon  each  other,  and  would 
be  inconsistent,  unless  the  natural  and  common  import  of  words  be 
varied,  construction  becomes  necessary,  and  a  departure  from  the 
obvious  meaning  of  words,  is  justifiable.  But  if,  in  any  case,  the 
plain  meaning  of  a  provision,  not  contradicted  by  any  other  pro- 
visions in  the  same  instrument,  is  to  be  disregarded,  because  we 
beheve  the  framers  of  that  instrument,  could  not  intend,  what 
they  say ;  it  must  be  one,  where  the  absurdity  and  injustice  of 
applying  the  provision  to  the  case,  would  be  so  monstrous,  that 
all  mankind  would,  without  hesitation,  unite  in  rejecting  the  ap- 
phcation." 

a  Eeg.  V.  Frost,  9  Car.  &  P.  129. 

h  Story  on  the  Conflict  of  Laws,  lutrod.  Eemarks,  p.  10. 

the  sense  which  it  naturally  presents.  To  go  elsewhere  in  search  of  conjectures 
in  order  to  restrain  or  extinguish  it,  is  to  endeavor  to  elude  it.  Jackson  v.  Lewis 
17  John  475  ;  People  v.  N.  Y.  Cent.  E.  K.  Co.,  13  N.  Y.  78.  The  great  object  of 
llie  maxims  of  interpretation  is,  to  discover  the  true  intention  of  the  law  ;  and 
when  that  intention  can  be  indubitably  ascertained,  and  it  be  not  a  violation  of 
fonstitutional  right,  the  courts  are  bound  to  obey  it,  whatever  may  be  their  opin- 
ion of  its  wisdom  or  policy.     1  Kent.  Com.  468. 

It  is  only  when  a  statute  is  ambiguous  in  its  terms,  that  courts  may  rightfully 
exercise  the  power  of  controlling  its  language  so  as  to  give  effect  to  what  they 
may  suppose  to  have  been  the  intention  of  the  lawmakers,  Wood  v.  Adams,  35 
N   Hamp.  R  3G. 


CONSTRUCTION   OF  WORDS.  209 

To  effectuate  the  real  intentions  of  the  Icgislatui-e,  and  to  give 
a  reasonable  operation  to  the  Avords  thej  have  used,  it  has  thus, 
sometimes,  become  necessary,  to  put  a  constniction,  not  strictly 
contrary  to  the  words,  but  totally  dillcrent  to  the  mere  literal  con- 
struction of  the  clauses  of  an  act  of  parliament.  -'■" 

The  statute  of  Avrecks  has  been  already  referred  to,  and  the 
provision  that  all  gcjods  are  to  bo  carefully  kept  for  a  year  and  a 
day,  det-larcd  to  bu  inapplicable  to  perishal)le  commodities,  which 
in  i)opular  language,  will  not  keep  a  long  time.  Here,  according 
to  l>acon,  the  Avords  are  to  be  restrained  atZ  aptitudinem  rei. 

The  stat.  1  E.  2,  de  frangentibus  prisonam,  says,  that  a  prisoner, 
who  breaks  prison,  shall  be  guilty  of  felony  ;  yet,  if  a  prison  be  on 
tire,  and  a  prisoner  break  it  in  order  to  save  his  life,  he  shall  be 
excused,  a  He  is  not  to  be  hanged,  because  he  would  not  stay  to 
be  burnt. 

The  stat.  2  Geo.  3,  c.  19,  s.  1,  enacts  that  "  no  person  shall, 
upon  any  pretence  A\hatsoever,  take,  kill,  or  have  in  his  posses- 
sion, any  partridge,  between  the  12th  day  of  February  (altered  by 
the  39  Geo.  3,  c.  31,  to  the  1st  of  February),  and  the  1st  day  of 
September."  The  defendant  (a  quahfied  person)  in  the  case  of 
Simpson  v.  Unwin,  h  had  some  partridges  in  his  possession,  sev- 
eral days  after  February  1st.  "  Although  this  case,"  said  Lord 
Tenderden,  "may  be  within  the  literal  meaning  of  the  words 
taken  b}^  themselves,  we  must  not  give  to  them  a  constniction, 
which  will  not  only  be  contrary  to  the  general  intention  of  the 
legislature,  but  which  will  lead  to  this  absurd  consequence ;  that 
a  party  who  might,  at  the  last  moment  of  the  day  on  the  1st  of 
Febi-uary,  lawfully  kill  a  partridge,  would  be  guilty  of  an  oftence 
by  haAing  the  same  partridge  in  his  possession,  at  the  earliest 
moment  of  the  2d."  Fer  Patteson,  J.,  "  The  statute  must  re- 
ceive a  reasonable  construction ;  I  think  it  would  be  absurd  to 
say  that  a  party  who  Idlls  game  within  the  time  when  he  may 
lawfully  do  so,  nmst  consume  it  all  upon  the  last  dav." 

In  Chapman  v.  Beecham,  c  LordDenman  said :  "  The  objection 
on  the  words  'next  ensuing,'  cannot  prevail ;  we  cannot  refer  the 
words  to  the  last  antecedent,  when  by  so  doing,  we  turn  the  whole 
into  nonsense."     In  Finch's  Discourse  of  Law,  book  1,  chapter  1, 

ft  llcniRcr  v.  Fopassa,  Plow.  13.  /«  3  13.  &  A.  131. 

c  3  Q.  B.  Hep.  733.    11.  v.  Wright,  1  A.  i  E.  131. 

Note  23.— Sometimes,  when  the  words  of  a  statute  are  obscure,  the  inteiiliou  of 
the  legislature  is  to  be  collected  from  the  cause  or  necessity  of  the  statute,  and 
sometimes  from  other  circumstances  ;  and  whenever  it  can  be  discovered,  it  ought 
to  be  followed  with  reason  and  discretion  in  the  interpretation,  although  such  in- 
terpretation seem  contrary  to  the  strict  letter  of  the  statute,  for  what  is  within  the 
intention,  is  within  the  statute,  and  what  seems  to  be  within  the  letter,  is  not 
within  the  statute,  unless  it  be  within  the  intention.  Teople  v.  Utica  Ins.  Co. 
15  John.  358,  1  Kent.  Com.  4G2. 
27 


210  CONSTRUCTION  OF  WORDS. 

it  is  said  :  "  Words  of  construction  must  be  referred  to  the  last 
antecedent, — where  the  matter  itself  doth  not  hinder  it."  And 
this  necessary  qualification  is  illustrated  by  a  striking  case.  In 
Guier's  case,  a  an  indictment  for  murder  had  the  words  :  "  John 
Guier  husband  to  the  said  Emehn  Guier  of  Hambridge  aforesaid, 
in  the  county  aforesaid,  3'eoman ;"  and  it  was  held  that  as  "  j-eo- 
man"  nmst  refer  to  John  Guier,  and  not  to  Emelin  Guier,  the 
county  also,  related  to  the  husband.  -' 

If  sensible  matter  be  alleged,  insensible  matter  following,  may 
be  rejected.  If  there  be  no  uncertainty  in  the  case,  a  word  may 
be  referred  to  the  only  antecedent  which  can  make  sense  of  it. 
R.  Y.  Wright,  b  And  see  Stracey  v.  Nelson,  c  that  the  relative 
need  not  be,  of  necessity,  referred  to  all  the  antecedents  ;  and  the 
judgment  of  Eolfe,  B.,  that  the  relative  may  be  referred  to  such 
antecedents  only,  as  -will  give  the  clause  a  sensible  and  reasonable 
construction,  d 

"  When  words,  per  se,  are  repugnant  and  very  absurd,  what  is 
necessary,"  it  has  been  said,  "  may  be  supplied,  by  reasonable 
intendment  and  good  construction."  Ijut  it  must  be  so  supplied 
ex  viscerihus  actus.  A  new  term  cannot  be  added  to  an  act ;  a 
new  sense  may. 

But  where  a  sense  can  be  added,  the  addition  must  be  a  neces- 
sary implication  from  the  words  already  used,  in  order  to  give 
them  a  sensible  meaning  and  effect.  It  proceeds  upon  the  ground, 
that  the  proposed  addition  is  already  necessarily  contained,  al- 
though not  expressed,  in  the  statiite  ;  in  which  case  it  is  not  less 
cogent,  because  not  expressed.  For,  as  the  intention  is  generally 
declared  by  words  expressed  and  written,  it  also  may  be,  bywords 
necessarily  implied,  and  therefore  virtually  written  ;  if  imphca- 
tion  be  needed  to  render  the  construction  sensible. 

A  statute  5  Geo.  2,  c.  20,  imposed  a  penalty  on  persons  piloting 
ships  "  down  the  Thames."  This  was  held  by  the  court,  not  to 
extend  to  vessels,  which,  having  performed  their  foreign  vogages, 
are  steered  from  one  Avharf  to  another  on  the  river  for  the  purpose 
of  unloading  their  cargoes  ;  otherwise  this  absurdity  would  have 
followed,  that  no  person  would  have  been  liable  to  a  penalty  for 
moving  his  vessel  vp  the  Thames  without  a  pilot ;  but  he  could 
not  with  impunity,  move  a  yard  down  without  a  pilot,  e 

The  stat.  29  Car.  2,  c.  7,  it  was  held,  does  not  prohibit  a  baker 
baking  dinners  for  his  customers  on  a  Sunday.  Lord  Kenyon 
said  :  "  We  should  construe  the  statute  so,  that  it  may  answer  the 

a  1  Dyer,  46  b.  ?>]A.  &E.  448. 

cl2  M.  &W.541.  dlOM.  &W.  728, 

e  K.  V.  Lamb,  C  T.  E.  7C;  K  v.  Neale,  8  T,  11,  241. 

Note  24. — Laws  which  create  crimes,  ought  to  be  so  explicit  in  themselves,  or 
by  reference  to  some  known  standard,  that  all  may  know  what  they  prohibit. 
United  States  v.  Sha^-p,  Tet.  C.  C.  R.  118. 


CONSTRUCnON   OF  WORDS.  211 

purposes  of  ])nLlic  convenience,  taking  care  at  the  same  time  that 
Sunday  should  not  bo  jn-ofaiicd.  The  day  will  1)C  better  observed 
than  if  we  adjudge  this  to  be  an  oflence.  It  falls  within  the  rea- 
son of  the  exception."  Ashurst,  J.:  "  Though  l)y  this  means,  some 
few  journciyman  bakers  are  kept  to  work  on  a  Sunday,  it  enables 
the  rest  of  the  community  to  attend  public  worship,  which  they 
could  not  have  an  opptntunity  of  doing,  if  they  had  no  means  of 
having  their  dinners  drest  from  home."  a 

The  stat.  23  Geo.  3,  c.  40,  imposing  a  duty  on  such  instraments, 
expressly  says,  that  "no  bill  of  exchange  shall  l^e  received  in 
t^vidence,  unless  it  be  lirst  duly  stamped."  On  an  indictment  for 
forging  a  bill  of  exchange,  the  objection  was  taken  that  it  could 
not  be  received  in  evidence  unless  it  were  first  duly  stamped.  All 
the  judges  held  that  it  need  not  be  stamped.  It  is  not  produced 
as  a  good  instrument,  but  as  a  false  one ;  and  it  is  not  competent 
to  the  person  making  such  false  instrument,  to  say  on  a  crimmal 
inquiry,  that  it  is  not  good  on  another  account,  h 

The  stat.  5  &  G  "\Vm.  4,  c.  50,  s.  08,  confers  a  power  of  certify- 
ing for  the  costs  of  a  special  jury,  on  the  court  before  which  an 
indictment  shall  be  "preferred."  The  correspontling  clause  in  a 
former  act,  13  Geo.  3,  c.  78,  s.  Go,  said :  "  The  court  before  which 
any  such  indictment  shall  be  iricd.''  Held  by  the  court  that  the 
word  "  preferred,"  must  be  understood  to  mean  "  tried."  Per 
Lord  Deuman  :  "  If  we  were  to  decide  against  it,  we  should  de- 
termine that  the  legislature  have  been  guilty  of  a  very  extraor- 
dinary omission ;  for  in  a  great  nuijority  of  cases,  the  indictment 
is  preferred  before  a  different  court  from  that  by  which  it  is  tried. 
I  am  of  opinion,  therefore,  that  we  may  give  to  sect.  08  the  con- 
struction contended  for."  Per  Coleridge,  J.:  "  The  different  con- 
stniction,  would  in  three  cases  out  of  four,  take  away  altogether 
the  effect  of  the  clause."  c 

By  the  2nd  sect,  of  3  &  4  Vict.  c.  24,  a  judge's  certificate,  that 
an  action  was  really  brought  "  to  try  a  right"  must  be  given  im- 
mediately after  the  verdict  is  delivered.  The  Court  of  Exchequer 
in  the  cases  of  Thompson  v.  Gibson,  (/  and  of  Page  v.  Pearce,  e 
have  determmed  that  the  word  "  immediately"  does  not  mean  as 
soon  as  ever  the  verdict  is  delivered,  but  that  the  judge  must 
necessarily  have  some  little  time  for  consideration  ;  and,  therefore, 
that  the  word  must  mean,  within  a  convenient  time  reasonably 
estimated.  And  a  decision  by  Lord  Hardwicke,  and  other  author- 
ities support  this  construction  of  the  word  "  immediately."/    But 

a  E .  V.  Younger,  5  T.  R.  4.",!. 

h  W.  V.  Hawkeswood,  E.  23.  Geo.  3;  1  Leacli,  257;  2  East,  T.  C.  955. 

c  E.  V.  Upper  Papworth,  2  East,  413;  Eeg.  v.  Peiubritlge.  2  Law  Journal,  1842, 
coHim,  Eeg.  v.  Preston,  2  Dowl,  P.  C.  593, 

(?8M.&W.  288.  elb.  G77. 

f  lu  strictness,  "  immediately"  exchules  all  intermediate  time  and  action,  yet 
sliall  be  construed  "such  convenient  time  as  is  reasonably  requisite  for  doing  a 
thing."     E.  V.  Francis,  Ca.  temp.  Hardw.  114.     Pynis  v.  Mittbrd,  2  Leon.  77. 


212  CONSTRUCTION  OF  WORDS. 

see  the  case  of  Grace  v.  Clincli.  a  Where  the  judge  had  gone  to 
another  assize  town,  it  might  be  too  late  to  grant  the  certificate. 
In  Shuttleworth  v.  Cocker,  Maule,  J.,  said  :  "  It  seems  to  be  the 
intention  of  the  act  to  exckide  any  impression  being  made  upon 
the  mind  of  the  judge  except  what  was  produced  at  the  trial ;"  b 
and  Lord  Abinger  said,  in  a  later  case,  that  he  apj^roved  of,  and 
was  ready  to  adopt,  this  principle.  But  in  Page  v.  Pearce,  the 
same  Chief  Baron  said,  "  If  acts  of  parliament  could  be  construed 
literall}',  consistently  with  common  sense  and  justice,  undoubtedly 
they  ought,  and,  if  I  could  see  upon  this  act  of  parliament,  that 
it  was  the  intention  of  the  legislature,  that  not  a  single  moment's 
interval  should  take  place  before  the  granting  of  the  certificate,  I 
should  think  myself  bound  to  defer  to  that  declared  intention." 

But  where  the  intention  of  the  framers  of  a  law  cannot  be  clear- 
ly seen,  and  where  the  meaning  of  the  words  used  is  obscure  and 
doubtful,  in  such  cases,  it  is  said,  the  consequences  of  a  particular 
exposition,  may  be  considered  in  the  construction.  The  legisla- 
ture did  not  mean  the  statute  to  be  inoi:)erative  beyond  all  ques- 
tion ;  its  design  is  not  to  be  defeated,  if  it  can  be  helped ;  verba 
debent  intelligi  cum  effeclu.  In  construing  a  statute,  if  it  be  pos- 
sible, no  part  of  it,  should  be  made  void ;  full  sense  and  meaning 
must  be  given  to  every  clause  and  provision.  So  in  a  will,  "  one 
spells  as  it  were,"  said  Lord  Kenyon,  "  every  word  to  get  at  the  in- 
tention." But  where  the  intention  of  a  testator  is,  as  is  expressed 
in  one  of  the  old  cases,  "  caxu  et  sicca,  and  senseless,  and  cannot 
be  known,"  the  courts  find  out  for  him,  the  very  last  intention  he 
was  likely  to  have  entertained  when  he  sat  down  to  make  a  will, 
viz  :  that  he  meant  to  die  intestate  ;  and  the  will  is  held  void. 

In  the  construction  of  a  statute  it  is  the  office  of  an  expositor 
to  put  such  a  sense  upon  the  words,  "  that  no  innocent  person 
shall  receive  any  damage  by  a  literal  construction."  "  Where  a 
statute  Avill  bear  two  inter])retations,  one  contrary  to  plain  sense, 
the  other  agreeable  to  it,  the  latter  shall  prevail."  If  Avords  liter- 
ally understood,  bear  only  a  verj  absurd  signification,  it  is  neces- 
sary to  deviate  a  little  from  their  primary  sense ;  and  Blackstone 
admits,  that  if,  out  of  acts  of  parliament,  there  arise,  collaterally, 
any  absurd  consequences,  manifestly  contradictory  to  common 
reason,  acts  are,  with  regard  to  those  collateral  consequences  only, 
held  void.  Such  cases,  indeed,  are  excepted  out  of  the  statute  by 
common  sense,  and  the  nonsensical  words  are  said  to  be  "  con- 
trolled by  the  common  law." 

Again,  "  words  are  to  be  taken  in  a  lawful  and  rightful  sense  ;" 
as  where  the  words  were,  "  Where  no  fine  is  levied  in  the  "  King's 
Court,"  they  are  to  be  understood,  no  fine  levied  by  the  husband 
and  wife,  which  is  lawful, — and  not,  no  fine  levied  by  the  husband 
alone,  which  would  work  a  wrong  to  the  wife. 

a  4  Q.  E.Eep.  606.  h  1  M.  &  G.  840. 


CONSTRUCTION   OF  WOIiDS.  213 

TVTieie  the  meaning  of  a  statute  is  doubtful  the  consequences, 
may  be  considered  in  the  construction  ;  but  -where  the  meaning 
is  plain,  no  consequences  it  is  said  arc  to  ])e  regarded  in  the  in- 
terpretation ;  for  this  would  be  assuming  a  U'gislative  authority,  (i 
The  consequences  are  to  be  considered  ;  iov  the  courts  will  not 
constnie  acts  oi  parhament  so  as  to  admit  of  any  absurd  conse- 
quences. " 

But  it  may  be  asked,  how  is  this  doctrine  to  be  reconciled  witli 
the  dicta  frequently  occuring  in  decided  cases,  that  the  judges  are 
to  expound  tlie  words  of  an  act,  according  to  their  plain  gi-am- 
matical  sense,  without  any  regard  to  tlie  consequences  that  ma} 
follow  from  tlieir  interpretation  V 

The  answer  is,  that,  ///  the  act  of  construction,  and  during  the 
])eriod  and  gestation  t)f  interpretation,  the  consequences  of  an} 
particular  exposition,  will  be  most  unexceptionably,  and  properl}', 
considered  and  weighed,  for  the  sake  of  avoiding  absurdity  ;  but 
that  after  the  court  has  arrived  at  a  determinate  conclusion,  what 
is  the  fit  construction  that  the  meaning  and  context  require  them 
to  put  upon  an  act  of  parliament,  the  judges  have  nothing  to  do 
with  the  consequences  of  their  decision.  In  Pieg.  v.  The  Justices 
of  Lancashire,  b  Patteson,  J.,  said,  "  I  cannot  tell  what  conse- 
quences may  result  from  the  construction  which  we  must  put 
upon  the  statute ;  bvit  if  mischievous,  they  must  be  remedied  by 
the  legislature."  In  Rhodes  v.  Smethurst,  c  Lord  Abinger  said, 
"  A  coiu't  of  law  ought  not  to  be  influenced  or  governed  by  any 
notions  of  hardship  :  cases  may  require  legislative  interference, 
but  judges  cannot  modify  the  niles  of  law."  In  Hall  v.  Franklin,  d 
Lord  Abinger  said,  "  AVe  have  been  strongly  pressed  with  the  in- 
conveniences that  may  result  from  the  construction  of  the  statute. 
We  are  not  insensible  to  them  ;  but  the  only  proper  cllect  of  that 
argument,  is  to  make  the  court  cautious  in  forming  its  judgment ; 
we  cannot  on  that  account  put  a  forced  construction  upon  the  act 
of  parhament." 

Other  difficulties  present  themselves  not  so  easy  of  solution ; 
and  other  discrepancies  will  be  found  to  occur,  much  harder  to  be 
reconciled. 

In  treating  of  the  construction  of  statutes  by  foreign  jurists,  a 

a  10  Mod.  344.  c  4  Mee.  &  W.  G3. 

b  11  A.  &  E.  157.  d  3  M.  &  W.  259. 

Note  25. — Where  tho  -n'ortls  of  a  statute  fixing  the  compeusatiou  of  a  publia 
officer  are  loose  and  obscure,  and  admit  of  two  interpretations,  they  should  ha 
construed  in  favor  of  the  officer.     U.  S.  v.  Moore,  3  Story  87. 

If  the  grant  of  a  franchise  admit  of  two  interpretations,  that  is  to  be  adopted 
which  least  restricts  the  public  rights.  Mills  v.  St.  Clair  Co.,  8  How.  569;  Ferine 
V.  Ches.  &  Del.  Canal  Co.,  9  How.  172;  Eice  v.  Min.  &  N.  W.  E.  E.  Co.,  IBlatch 
360. 


214  CONSTRUCTION   OF  T^•OEDS. 

passage  "s\-as  cited,  containing  tlie  remark:  "  oniriim  estmiisdc 
Jini€77dis,  quam  siidant  docfores."  a  And  when  the  difficulties  are 
considered,  not  only  of  making  peace  and  atonement  between  the 
several  disagreeing  clauses  and  j)rovisos  in  statutes,  but  also  of 
reconciling  apparently  conflicting  general  principles,  the  observa- 
tion will  ajipear  no  less  pertinent  and  just,  as  regards  the  inter- 
pretation of  acts  of  parliament.  The  great  difficulty  in  the  ex- 
position of  statutes,  is  the  same,  as  is  felt  in  the  construction  of 
wills.  In  Counder  v.  Clark,  Hobart,  C.  J.,  says,  "  AVe  must  pass 
between  two  main  grounds,  so  as  to  offend  neither  ;  one,  that  the 
devise  must  be  taken  according  to  the  intention  of  the  devisor ; 
the  other,  that  the  intention  must  be  so  expressed  in  the  will 
written,  that  it  may  be  certain  to  the  court,  and  not  against  laAV."  h 

The  difficulties  arising  in  the  construction  of  statutes,  may  be 
illustrated  by  two  recent  cases  (among  many  others),  arising  on 
the  construction  of  the  late  statute  of  Avills,  1  Yict.  c.  26,  ss.  3,  24 
and  33.  Johnson  v.  Johnson,  c  ajid  Winter  v.  Winter,  d  The 
former  decision,  seems  to  have  proceeded  on  the  gi'ound  of  a  clear 
and  plain  intention,  expressed  in,  and  upon  the  face  of  the  act. 
In  the  case  of  Winter  v.  Winter,  Wigram,  V.  C,  says,  "  Upon  the 
face  of  the  act  itself,  I  certainly  can  find  nothing  to  exclude  the 
latter  construction,  in  favor  of  the  former  ;  and  in  the  absence  of 
anything  upon  the  face  of  the  act  to  fix  the  meaning  of  the  words, 
I  am  bound,  as  well  as  I  can,  to  fix  that  meaning,  by  considering 
the  policy  of  the  act,  and  the  objects  it  was  intended  to  accom- 
phsh." 

Consulting  the  text  writers  and  the  reporters,  it  will  be  dis- 
covered, that  there  are  few  subjects  on  which  more  contradictory 
maxims  and  doctrines  have  been  ventilated;  than  upon  the  re- 
gard to  be  paid  in  construction,  to  the  "  pohcy  of  the  act."  -" 

It  is  said  in  Avorks  of  authority  e  to  be  a  sound  general  principle 
in  the  exposition  of  statutes,  that  less  regard  is  to  be  paid  to  the 
words  that  are  used,  than  to  the  ]-)olicy  which  dictates  the  act : 
The  King  v.  Hale  ;  /'  The  King  v.  The  Mayor  of  Liverpool,  g  And 
see  a  case  decided  on  the  policy. and  provisions  of  the  municipal 
corporation  act.     Hine  and  Eeynolds.// 

In  the  case  of  the  The  Inhabitants  of  St.  Gregory,  Taunton,  J., 
said,  speaking  of  the  case  of  The  King  v.  Hipswell :  "  The  judg- 

a  Ante,  p.  r  3  Hare  Eep.  p.  157. 

6  Hob.  32.  c/5  Hare,  30fi. 

^  1  B.  &  C.  123.  f  Cro.  Car.  330;  3  Lev.  82. 

r/  c  1  A.  &E.  176.  'h  2  Scott  Eep.  N.  C.  p.  419. 

Note  26. — "What  is  called  the  policy  of  the  government,  with  reference  to  any 
IjarticTilar  legislation,  is  too  unstable  a  ground  upon  which  to  rest  the  judgment 
of  the  court  in  the  interpretation  of  statutes.     Hadden  v.  Collector,  5  Wall.  107. 

The  courts  are  not  bound  by  the  construction  placed  upon  a  statute  by  one  of 
the  executive  departments,  though  such  construction  is  entitled  to  respect.  IT. 
S.  V.  Dichron,  15  Pet.  161. 


CONSTRUCTION   OF  WORDS.  215 

ment  was  rested  by  Mr.  Justice  liayley,  partly  on  the  considera- 
tion of  public  policy;  a  very  questionable  and  unsatisfactory 
ground,  because  men's  minds  dilier  much  on  the  nature  and  ex- 
tent of  public  policy."  Williams,  J.,  added  :  "  The  ground  of  pub- 
lic policy,  is  a  very  unsafe  one  :  it  is  best  to  adhere  to  the  words 
used  in  the  act  of  parliament." 

Deciding  upon  the  jiolicy  of  an  act,  was  called  Ijy  another 
learned  Judge  (Burrough),  "  riding  an  unruly  horse." 

"Arguments,"  says  Htory,  "  drawn  from  im])olicy  or  inconveni- 
ence, ought  to  have  little  Aveight.  The  only  sound  princi]jle  is  to 
declare  iUi  lex  scripta  est,  to  follow  and  to  ol)ey.  Nor  if  a  princii)le 
so  just  could  be  overlooked,  could  there  be  well  found  a  more  un- 
safe guide  in  practice,  than  mt're  policy  and  convenience.  Men, 
on  such  subjects  complexionally  differ  from  each  other  :  the  same 
men  differ  from  themselves  at  different  times.  The  policy  of  one 
age  may  ill  suit  the  Avishes  or  the  policy  of  another.  The  law  is 
not  to  be  subject  to  such  tiuctuatioiis."(/ 

It  has  been  shown,  that  etl'ect  is  to  be  given  to  the  intentions  of 
the  legislature,  whenever  the  object  of  the  framers  of  a  law  is  ex- 
pressed in  apt  terms,  or  can  be  clearly  collected  from  the  language; 
they  have  used.  The  language  of  acts  has  been  adverted  to,  and 
it  has  been  seen  that  when  technical  terms  are  used,  they  are  to 
be  taken  in  a, technical  sense;  unless  there  be  something  in  the 
context  to  show  that  a  different  meaning  Avas  intended.  In  other 
cases,  Avords  are  to  be  taken  in  their  ordinary  sense,  according  to 
grammatical  construction ;  and  not  extended  beyond  it,  to  com- 
prehend cases  Avithin  the  supposed  meaning  of  the  makers.  To 
this  rule,  there  are  tAvo  exceptions :  1st,  in  the  case  of  ancient 
statutes ;  and,  2ndly,  Avhere  a  literal  construction,  Avould  lead  to 
absurdity  and  mischief. 

It  remains  to  illustrate  the  rule — that  effect  cannot  be  given  to 
an  intention  not  expressed. 

Of  this  rule  there  seem  to  be  Iavo  branches.  The  first  instance 
that  may  be  stated,  is,  Avhere  the  legislature  may  haA^e  intended 
to  provide  for  a  particular  case,  and  yet  not  have  earned  its  in- 
tention into  effect.  "  We  can  only  say  of  the  legislature,"  said 
Lord  Ellenborough  in  Eex  v.  8hone,  quod  voluit  noii  dixit.'" b  "If 
the  legislature  intended  more,"  said  Lord  Denman  in  Haworth  v. 
Ormerod,  c  "  Ave  can  only  say,  that  according  to  our  o[)inion,  they 
have  not  expressed  it." 

Again,  the  subject  may  have  been  entirely  overlooked  by  the 
legislature. 

A  casus  omissus  can  in  no  case  be  supplied  by  a  court  of  law ; 
for  that  would  be,  to  make  laws.  Judges  are  bound  to  take  the 
act  of  parliament  as  the  legislature  have  made  it.  d 

a  Conflict  of  Laws,  Story  17.  h  6  East,  518. 

c  6  Q.  B.  Kep.  307.  d  1  T.  R.  52. 


216  CONSTRUCTION   OF  WORDS. 

In  E.  T.  Powell,  as  to  what  owners  of  carts  driven  in  London 
were  liable  to  forfeiture,  Ashurst,  J.,  said,  "  The  mischief  which 
the  legislatiu'e  wished  to  remedy,  is  the  improper  behavior  of  per- 
sons driving  carts  in  London,  or  the  adjoining  places.  That  mis- 
chief is  as  much  to  be  apprehended  when  the  OAvner  lives  at  a  dis- 
tance as  when  he  resides  in  Loudon.  However,  the  legislature 
coutines  the  operation  of  the  act  to  persons  residing  within  pre- 
scribed limits,  and  as  the  defendant  does  not  live  within  those 
liuiits  he  is  not  liable  to  the  penalties  of  the  act."  a 

"  It  is  safer,"  said  Mr.  J.  Ashurst,  in  a  judgment  on  the  game 
laws,  "  to  adopt  what  the  legislature  have  actually  said,  than  to 
suppose  what  they  meant  to  say.  The  heir  apparent  they  have 
qualified,  from  a  supposition  that  the  esquire  was  so  already.  I 
cannot  think  it  was  their  intention  purposely  to  exclude  the 
father,  but  in  fact  they  have  done  it."  h 

In  Brandling  v.  Barringion,  Bayley,  J.,  said,  "I  certainly  think 
that  the  present  case  comes  within  tlie  mischief  intended  to  be 
remedied  by  the  stat.  8  Ann  c.  14,  s.  1,  and  I  should  have  been 
better  satisfied  if  it  could  have  been  brought  within  the  fair  con- 
struction of  the  words  of  that  enactment.  But  I  think  we  should 
be  attributing  too  comprehensive  a  meaning  to  the  words  of  the 
statute."  Holroyd,  J.,  said,  "  This  case  does  not  appear  to  have 
been  contemplated  by  the  legislature,  although  it  may  perhaps  be 
within  the  mischief  which  they  intended  to  remedy  by  the  8  Anu. 
c.  14."  c 

The  result  is,  that  to  bring  a  case  within  the  statute,  it  should 
be  not  only  wdthin  the  mischief  contemplated  by  the  legislature, 
but  also  within  the  plain  intelligible  import  of  the  words  of  the 
act  of  parhament. 

In  a  late  case  on  the  municipal  corporation  act,  Lord  Denman 
said,  "  The  legislature  might  have  intended  to  give  a  concurrent 
jurisdiction  to  the  county  and  l)orough  sessions,  however  mis- 
chievous ;  or  it  might  have  intended  to  prevent  the  evils,  but  not 
•jarried  its  intention  into  efiect ;  or  the  whole  subject  might  have 
f^scaped  attention.  In  any  one  of  these  cases,  we  should  be  bound 
to  discover  what  the  law  is,  and  to  declare  it,  without  any  regard 
to  the  consequences  of  its  imperfection."  d 

So,  if  words  go  beyond  the  intention,  it  rests  with  the  legisla- 
ture to  make  an  alteration.  "  Our  decision,"  said  Lord  Tenter- 
den  in  a  late  judgment,  "  may,  perhaps  in  this  jiarticular  case, 
operate  to  defeat  the  object  of  the  statute ;  but  it  is  better  to 
abide  by  this  consequence,  than  to  put  upon  it  a  construction  not 
warranted  by  the  words  of  the  act,  in  order  to  give  efiect  to  Avhat 
we  may  suppose  to  be  the  intention  of  the  legislature."  e  In 
another  case,  the  same  distinguished  judge  said,  "  The  words  may 

a -IT.  E.572.  6  1  T.  R.  52. 

c  6  B.  &  C.  475.  d  Reg.  v.  Justices  of  Shropshire,  2  Q.  B.  Eep.  04. 

e  E.  V.  Barham,  8  B.  <t  C.  104. 


CONSTRUCTION  OF  WORDS.  217 

probably  go  beyond  the  intention,  but  if  tlioy  do,  it  rests  with 
the  legislature  to  make  an  alteration ;  tlie  duty  of  the  court  is 
only  to  construe  and  give  eilect  to  the  provisions."  (t 

An  early  instance  of  the  courts  giving  effect  to  the  jorovisions 
of  an  act,  wliich  probably  went  beyond  the  intention  of  the  legis- 
lature, will  be  found  in  the  construction  put  upon  cap.  2  of  the 
statute  of  Mailbridgc  ;  it  was  there  enacted,  that  in  certain  cases, 
the  distress  being  delivered  up  immediately,  "  ?/o/t  'piiniatar  domi- 
nmpcr  rrdniiii/ioncin.'"  "This  brancli,"  says  Lord  Coke,  "is in- 
terpreted that  the  lord  shall  pay  no  line,  and  therefore,  since  this 
act,  by  a  consequent,  (most  probably  not  the  design  of  the  makers,) 
no  action  of  trespass  ri  ct  ar)itis,  lieth  against  the  lord  in  this 
case  ;  for  then,  he  should  pay  a  fine."  (> 

Although  the  intent  of  the  legislature,  is  not  to  be  collected  from 
any  particular  expression,  l)ut  from  a  general  view  of  the  whole  of 
an  act  of  parliament,  c  it  is  often  material  to  attend  to  the  collo- 
cation of  words  in  a  sentence. 

When  words  are  at  the  beginning  of  a  sentence,  they  may  gov- 
ern the  Avhole  (/  as  "  Xidlus'  liber  homo  ,-" — "  All  Avidows  ;" — "  Ense- 
ment  et  en  mcme  le  nutnere"  <fec.  e 

When  words  are  at  the  end  of  a  sentence,  they  may  refer  to  the 
whole,  g  Thus  the  Avovds,  per  ler/em  terrce,  in  cap.  29  of  Magna 
Cliarta,  being  towards  the  end  of  the  chapter,  have  been  always 
held  to  refer  to  all  the  precedent  matter. 

But  if  words  are  in  the  middle  of  a  sentence,  /"  and  sensiblj-  ap- 
ply to  a  particular  branch  of  it,  can  they  be  extended  to  that 
which  follows  ?  Agreeably  to  reason,  and  in  gi-ammatical  con- 
struction, it  should  seem  not ;  but  as  statutes  are  read  Avithout 
breaks  and  stops,  it  is  not  any  time  clear,  that  words  belong  to 
any  particular  branch  of  a  sentence  ;  it  must  be  collected  fi'om  the 
context,  to  what  they  relate  ;  and  they  are  often,  as  Avill  be  seen, 
to  be  read  distributively — reddendo  singula  f>in(juH>^. 

An  expression  which  has  precedence  in  the  order  of  the  words, 
must  be  taken  to  have  been  used  with  reference  to  things  or  per- 
sons of  a  higher  order,  or  superior  rank.  Thus  where  by  the 
London  tithe  act,  the  houses  of  three  classes  of  persons  are  ex- 
empt, to  wit,  the  houses  of  great  men,  (magnafesj,  noblemen  and 
noblewomen,  (and  it  was  no  uncommon  thing  for  the  nobility  to 
reside  in  the  city  in  those  da3's) ;  Eichards,  cliief  baron,  said,  "  I 
inchno  to  think  that  the  order  of  the  words,  (which  is,  by  the 
i*ules  of  grammar  a  criterion  of  construction,)  imports,  that  gi-eat 
men  must  mean  persons  superior  in  certain  respects  to  noblemen 
and  noblewomen,  of  which  description  there  are  certainly  persons 

a  Notley  v.  Buck,  8  B.  &  C.  1G4.  f<  2  Inst.  105. 

c  See  ante,  p.  573.  d  2  Inst.  45;  id.  18. 

e  See  post.  Mag.  Char.  Merton.  Glouc.  /2  Inst.  50. 

3  8  B.  &  C.  94. 

28 


218  CONSTEUCTION   OF  WOEDS. 

in  this  country.     This  defendant,  (the  Dean  of  St.  Paul's)  is  how- 
ever, not  one  of  either  chxss  of  those  privileged  persons."  a 

Though  used  in  their  plan  and  ordinary  sense,  general  words 
nia}'  be  limited  by  the  relative  word  "  such,"  to  a  particular  de- 
scription of  thing  contained  in  a  preceding  section,  h  Thus,  the 
•ith  section  of  the  stat.  3  Geo.  4,  c.  39,  which  requires  the  defeas- 
ance to  a  warrant  of  attorney  to  be  written  on  the  paper  or  parch- 
meut  on  which  the  instrument  itself  is  written,  has  been  twice 
held  to  apply  only  to  such  warrants  of  attorney  as  fall  within  the 
former  sections  of  the  act,  and  which  are  void  against  the  as- 
signees of  a  bankrupt,  and  has  been  consequently  held  not  to  be 
void  betAveen  the  parties,  c  "  Alwaj's  in  statutes,  relation  shall 
be  made  according  to  the  matter  precedent."  d 

Eelative  words  in  an  act  of  parliament  (words  of  reference  in  a 
subsequent  statute)  will  make  a  thing  pass  as  well  as  if  it  had 
been  particularly  expressed  in  the  act  itself ;  e  Verba  illata  inesse 
vidottKr.  Clauses  of  reference,  incorporating  provisions  of  former 
statutes,  take  eiiect  as  fully  as  if  they  had  been  repeated,  and  re- 
enacted  in  the  body  of  the  latter  act,  with  relation  thereto.  "  It 
is  a  sound  rule  of  construction,  but  applicable,"  said  Lord  Den- 
man  in  a  recent  case,  "  to  modern  as  well  as  to  ancient  statutes, 
(perhaps  indeed  more  so,  from  necessity,  in  consequence  of  the 
looseness  of  expression  which  now  prevails ;)  that  '  in  the  con- 
stniction  of  general  references  in  acts  of  parliament,  such  refer- 
ence must  be  made  only  as  will  stand  with  reason  and  right.'  "/ 
"  Where  a  provision  is,  in  its  original  and  natural  application 
limited  in  respect  to  time  and  place,  it  is  to  give  to  general  words 
of  incorporation,  a  meaning  contrary  to  reason,  and  it  may  be  to 
justice,  to  hold  that  they  apply  to  it."  r/  A  clause  of  reference  in 
an  excise  statute  was  held  to  extend  only  to  the  general  powers 
and  provisions  of  that  law,  and  not  to  every  particular  clause. 

"  The  fair  construction,"  said  Ashurst,  J.,  "  to  put  upon  the 
clause  of  reference  in  question,  (which  was  a  general  clause), 
seems  to  be  this : — that  all  the  general  powers  and  provisions 
given  and  made  in  acts  in  pari  maferie,  shall  be  virtually  incor- 
porated in  this,  but  that  such  provisions  as  are  always  considered 
as  special  provisions,  shall  not.  The  power  of  appealing  from  the 
judgment  of  the  justices  seems  to  be  this  kind,  and  does  not  at- 
tach without  being  expressly  given,  h 

a  The  Warden  of  St.  Paul's  v.  the  Dean,  4  Price  G5. 

6K.  V.  Gwenop,  3  T.  E.  135;  R.  v.  Marks,  13  EastlG5;  and  for  the  effect  of 
"such,"  2  Inst.  Ill;  11  Eep.  33. 

c  Morris  v.  Mellor,  6B.  &  C.  41G.  Holroyd,  J.  diss.;  and  Bennet  y.  Daniel,  10 
B.  &C. ;  Parke,  J.  diss. 

d  6  Eep.  76  b.  /2  Inst.  287. 

e  Wheatley  v.  Thomas,  Eaym.  54.  ^  6  Q.  B.  Eep.  343.      .^ 

h  E.  V.  Justices  of  Surrey,  2  T.  E.  504. 


ATFIRMATIVE  AND   rEEMISSrVE   WOEDS.  219 

An  iustance  of  the  ill  effect  of  the  incoq^oration  of  provisions 
by  reference  to  another  act,  niay  be  seen  in  lieg.  v.  The  llecorder 
of  Bath,  a  in  which  case  Lord  Dennian  says  :  "  As  it  seems  to  us 
hardly  possible  to  suppose  it  to  have  been  the  intention  of  the 
legislatm-o,  that  an  individual,  interested  and  aggrieved  should  not 
have  the  power  of  qut^stioniiig  the  validity  of  a  vote  at  the  ses- 
sions, we  cannot  avoid  noticing  with  regret,  that  recourse  should 
have  been  had  to  the  method  of  giving  an  appeal  by  reference  to 
another  statute,  instead  of  giving  it  i)lainly  and  directly  by  the 
statute  itself."  Sei;  also  the  (^ueen  v.  Stock, />  that  a  right  (;f  ap- 
peal cannot  be  implied,  but  nnist  be  given  by  express  words. 

The  rights  of  the  crown  can  never  be  taken  away  by  doubtful 
wdrds,  or  ambiguous  expressions,  but  only  by  express  terms. 
Thus,  a  statute  saying  in  general  terms  that  the  decision  of  the 
sessions  shall  be  hnal,  or  that  the  proceedings  shall  not  be  re- 
moved by  cerfiordfi,  or  the  like  ;  will  not  take  away  the  certiorari 
at  the  instance  of  the  crown,  unless  there  be  some  words  in  the 
act  to  show  that  the  legislature  intended  that  the  crown  should 
bo  barred.  <■ 

If  a  statute  prohibit  contraband  goods  under  a  penalty,  a  sub- 
sequent statute  declaring  goods  contraband,  will  draw  the  penalt} 
after  it.  d 

Allusion  was  before  made  to  the  manner  in  which  prior  acts 
may  be  controlled  (either  enlarged  or  restrained)  by  subsequent 
acts.  This  doctrine  may  be  further  illustrated  by  the  case  of  li. 
v.  Gwenop.  e  The  22  Geo.  3,  c.  44,  was  passed  to  protect  soldiers, 
setting  up  trades,  from  incurring  the  penalties  of  the  5  Eliz.  c.  4. 
The  stat.  24  Geo.  3,  c.  G,  enlarging  the  privileges  by  the  former 
act  22  Geo.  3,  c.  44,  declared  that  they  should  be  in*emovable 
during  the  time  they  exercised  any  trade. 

It  is  generally  to  be  taken  that  the  legislature  only  meant  to 
modify  or  repeal  the  provision  of  any  former  statute,  in  those  cases 
where  such  its  objects  is  expressly  declared. 

It  is  always  to  be  presumed  that  the  legislature,  when  it  enter- 
tains an  intention,  will  express  it,  and  that  too,  in  clear  and  ex- 
pHcit  terms. 

Affirmative  words,  it  has  been  already  seen,  do  not  take  away 
the  common  law, — a  former  custom, — or  a  former  statute.  So, 
general  words  do  not  take  away  a  particular  benefit  or  privilege ; 
as  the  stat.  West,  2.  c.  18,  wliich  gives  an  defjit,  does  not  take  away 
the  privilege  an  infant  has  that  ho  shall  not  be  sued  during  his 
nonage,  if  an  ehgit  be  against  the  heir  of  a  conusor  being  an  in- 
fant./ 

a  9  A.  &  E.  877.  6  8  A.  &  E.  405. 

c  K.  V.  Allen,  15  East,  310.  E.  v.  Inhab.  of  Cumberlaml,  G  T.  E.  194;  3  B.  & 
P.  354. 

d  1  Price.  182.  e  3  T.  E.  135. 

/  2  Inst.  395. 


220  ATFIEMATIYE  AND  TEEMISSn^E  WORDS. 

"Words  of  permission  sliall  in  certain  cases  be  obligatory.  Where 
a  statute  directs  the  doing  of  a  thing  for  the  sake  of  justice,  the 
"svord  may  means  the  same  as  the  word  sliall.  The  stat.  23  Hen.  G, 
0.  10,  says  the  sheriff,  Ac,  may  take  bail;  but  the  construction  has 
been,  that  he  shall  be  bcnmd  to  take  bail.  So,  if  a  statute  says, 
that  a  tiling  may  be  done  which  is  for  the  public  benefit,  it  shall 
be  constiiied  that  it  nmst  be  done.  Exception  was  taken  to  an  in- 
chctment,  (upon  the  stat.  14  Chas.  2,  c.  12j,  against  churchwardens 
and  overseers,  for  not  havmg  made  a  rate  to  reimburse  a  constable, 
and  it  was  urged,  that  the  statute  only  puts  it  in  their  power,  by 
the  word  may,  to  make  such  a  rate,  biit  does  not  require  the  doing 
it  as  a  duty,  for  the  omission  of  which  they  are  punishable.  The 
exception  was  not  allowed  ;  and  the  court  hold  that  an  indictment 
hes  against  them,  if  they  refuse  it.  a "' 

Sometimes  words  and  sections  are  governed  and  explained  by 
conjoined  words  or  clauses  :  Noscitur  a  socio.  Where  of  words  or 
clauses  in  conjmiction,  one  has  received  a  natural,  or  a  technical, — 
a  strict  or  enlarged  interpretation,  it  is  often  contended  that  the 
others  shall  be  taken  m  a  Uke  sense. 

Where  the  words  are  general,  and  a  statute  is  only  declarator}^ 
of  the  common  law,  it  shall  extend  to  others,  besides  the  persons  or 

all.  V.  Flockwoia  Inclosmre  Commrs.,  2  Chitty  251.  K.  v.  Barlow,  Salk.  fi09; 
Vern.  154. 

Note  27. — With  us,  the  word  may,  is  sometimes  a  permlss[\:6  and  sometimes  a 
directory  word  in  the  construction  of  a  statute.  May,  in  a  statute,  means  must, 
whene-ver  third  persons  or  the  public  have  an  interest  in  having  the  act  done 
which  is  authorized  by  such  permissive  language.  Lucas  v.  Ensign,  4N.  Y.  Leg. 
Ob.  142,  N.  Y.  Com.  Pleas.  It  may  be  construed  to  mean  shall,  when  the  i^ublic 
or  individuals  have  a  claim  dejure,  that  the  jjower  shall  be  exercised.  Newburgh 
Turnpike  Co.  v.  Miller,  5  John  Ch.  113;  Malcolm  v.  Eodgers,  5  Cow.  188.  But 
no  general  rule  can  be  laid  down  on  this  subject,  further  than  that  such  exposi- 
tion ought  to  be  adopted  as  shall  carry  into  effect  the  true  intent  and  object  of  the 
enactment  The  ordinary  meaning  of  the  word,  which  is  permissive,  ought  to  be 
adopted,  and  must  be  presumed  to  be  intended,  unless  it  would  manifestly  defeat 
the  object  of  the  provision.  Miner  v.  Mechanics'  Bank,  <tc.,  1  Pet.  64;  N.  Y.  & 
Erie  K.  Pt.  Co.  v.  Coburn,  C  How.  Pr.  E.  224;  Buffalo  Plank  EoadCo.  v.  Commis- 
sioners of  Highways,  10  How.  Pr.  E.  239 .  In  this  last  case  it  was  held,  that  if  the 
rights  and  interests  are  not  concerned,  or  private  persons  have  no  lawful  claim 
or  interest  in  the  exercise  of  the  power,  the  -word  may,  by  which  the  power  was 
conferred,  should  receive  its  ordinary  meaning,  and  should  be  construed  as  con- 
ferring a  discretionary  power  upon  the  ofBcer  or  public  body.  See  also  Supervi- 
sors V.  United  States,  4  W^all.  435;  City  of  Galena  v.  Army,  5  Wall.  705;  Nave  v. 
Nave,  7  Ind.  91;  Livingston  v.  Lamin,  14  N.  Y.  E.  67;  Hutson  v.  Mayor  of  New 
York,  9  N.  Y.  169.  The  vfovd  shall,  it  has  also  been  held,  can  be  substituted  for 
may,  in  the  interpretation  of  a  statute,  when  the  good  sense  of  the  entire  enact- 
ment req^uires  the  change.     People  v.  Common  Council  of  Brooklyn,  22  Barb.  404. 


DECLAILVTORY  WORDS.  221 

things  named ;  a  the  stronger  cases  only  are  put,  the  weaker  in- 
chided  : — thus  where  the  king's  bench  oiJy  is  mentioned,  the  pro- 
vision was  hekl  to  extend  to  the  other  principal  couiis.  -' 

Hometimes,  on  the  contrary,  the  expressions  used  are  restrictive, 
and  intended  to  exckide  all  thmgs  which  are  not  enumerated — "cx- 
]>res.sio  nnius  est  exdusio  alterms."  As  exception  strengthens  the 
force  of  a  laAv  in  cases  not  excepted,  so,  according  to  Lord  Bacon, 
tinumeration  weakens  it  in  cases  not  enumerated.  Thus,  coal-mines 
are  rateable  by  the  exjn-ess  words  of  the  stat.  43  Eliz.  c.  2;  l)ut  it 
lias  been  held,  that,  as  other  mines  v.-ere  known  in  the  countr'S' 
•when  the  statute  passed,  the  menti(m  of  this  inferior  species  of  mhie 
amounts  to  a  tacit  exemption  or  exclusion  of  all  others,  such  as 
lead,  tin,  copper,  ii'on  or  any  other  but  coal  mhies.  h  Where  cer- 
tam  specific  tilings  are  taxed,  or  subjected  to  any  charge,  it  seems 
probable  that  it  Avas  intended  to  exclude  everything  else,  even  of  a 
shnilar  nature;  and  a  fortiori,  all  things  different  in  genxs  and  de- 
scription, fi'om  those  which  are  enumerated  :  as  slate  or  lime  (piar- 
ries,  where  coal  mines  arc  named. 

Where  a  general  act  of  parliament  confers  innnunities  which  ex- 
pressly exempt  certam  persons  from  the  eflect  and  operation  of  its 
provisions,  it  excludes  all  exemi)tions  to  which  the  subject  might 
Jiave  been  before  entitled  at  common  law.  The  introduction  of  the 
exemption  is  necessarily  exclusive  of  all  other  independent,  extiin- 
sic  exceptions,  c  The  maxim  is  clear,  "expi-essum  facit  cessarc 
r'  •ihiiii.'"  d     Affirmative  specification  excludes  unplication. 

Statutes  also  are  sometimes  only  directoiy  what  is  to  be  done  ; 
at  other  tunes  compulsory :  that  is,  according  to  theu'  provisions 
discretionary  or  imperative.  The  stat.  43  EKz.  c.  2,  s.  5,  enacted 
that  male  apprentices  should  be  bound  out  by  the  parish  till  the 
age  of  twenty-fom- :  yet  a  binding  till  twenty-one  was  held  to  confer 
a  settlement ;  for  the  statute  is  only  du-ectory,  and  not  compulsory 
in  this  respect,  e 

In  Pearse  v.  Monice,  Taunton,  J.,  said,  "  I  understand  the  dis- 
tinction between  directoiy  and  imperative  statutes  to  be  that  a 

a  2  lust.  25G;  Stat.  West.  1,  cap.  4G. 

h  11.  V.  Cuuuiugham,  5  East,  478. 

c  The  Warden  of  St.  Paul's  v.  The  Dcau,  4  Price,  78. 

d  3  T.  E.  442.         •  e  K.  v.  Woolstanton,  1  Bolt.  CIO. 

Note  28.— Declaratory  statutes  arc  not  common,  or  of  much  expediency  in  this 
country.  They  were  resorted  to  in  England  to  revive  old  customs,  which  had 
fallen  into  disuse,  or  which  had  become  disputable;  sometimes  to  resolve  doiabts 
or  difficulties,  and  to  declare  what  the  common  law  is;  and  sometimes  to  explain 
doubts  in  regard  to  old  or  modern  statutes,  and  in  these  respects,  parliament  as- 
sumed the  judicial  power  of  giving  authentic  interpretation.  Such  powers  can 
only  be  exercised  here  by  virtue  of  the  legislative  power,  which  is  limited;  and  as 
we  have  r.lready  shown,  (page  ),  cannot  act  retroactively  upon  statutes  which 
have  had  judicial  interpretation  from  the  courts,  nor  upon  vested  rights. 


222  DIEECTOEY  AXD  IMPEEATIVE  STATUTES. 

clause  is  directory,  wlien  the  provisions  contain  mere  matter  of  dii'ec- 
tion  and  nothing  more ;  but  not  so,  where  they  are  followed  by 
such  words  as  are  used  here,  viz  :  that  auytlmig  done  contrary  to 
such  provisions  shall  be  null  and  void  to  all  intents.  These  words 
give  a  ch'rect,  positive,  and  absolute  prohibition.  If  they  are  not 
obhgatory,  I  cannot  conceive  to  myself,  any  words  which  can  have 
a  prohibitory  force."  «  ■"■' 

a  2  A.  ct  E.  94. 

Note  29. — The  provisions  of  a  law  wliich  are  merelj'  directory,  ai'e  not  to  be  con- 
strued into  conditions  precedent.  Whitney  v.  Emmott,  1  Bald.  303.  When  the 
terms  of  a  statute  leave  room  for  any  administrative  discretion  to  be  exercised,  it 
cannot  be  interpreted  to  be  mandatorj^  or  to  be  a  condition  precedent.  But  in 
a  case  where  the  salary  of  an  officer  is  fixed  by  statute,  which  declares  it  to  be  a 
county  charge,  and  that  the  si;pervisors  shall  audit  and  allow  it  as  it  becomes 
due,  the  statute  is  imperative,  and  the  supervisors  have  no  discretion.  Morris  v. 
The  People,  3  Denio  381.  A  statute  directing  the  mode  of  proceeding  bypublic 
officers,  is  to  be  deemed  directory,  and  a  precise  compliance  is  not  to  be  deemed 
essential  to  the  validity  of  the  proceedings,  unless  so  declared  by  statute.  People 
V.  Cook,  8  N.  Y.  67.  So  too,  the  provisions  of  a  law  fixing  the  time  for  interme- 
diate steps,  after  jurisdiction  has  been  once  acquired,  are  to  be  deemed  directory, 
and  a  disregard  of  them  does  not  avoid  the  proceedings.  U.  S.  Trust  Co.  v.  U.  S. 
Fire  Ins.  Co.,  18  N.  Y.  199.  Generally,  the  rule  is,  when  a  statute  specifies  the 
time  within  which  a  public  officer  is  to  perform  an  act  regarding  the  rights  and 
duties  of  others,  it  will  be  considered  as  directory  merely,  unless  the  natujre  of  the 
act  to  be  performed,  or  the  language  of  the  statute  shows  that  the  designation  of 
time  was  intended  as  a  limitation  of  power.  People  v.  Allen,  6  Wend.  487;  Jack- 
son V.  I'oung,  5  Cow.  2G9. 

The  statute  which  requires  the  officer  before  whom  proceedings  are  had  against 
an  absconding,  concealed,  or  non-resident  debtor  to  make  and  file  his  report 
within  twenty  days  after  the  appointment  of  trustees,  and  the  latter  to  cause  their 
appointment  within  thirty  days,  (2  K.  S.  12,  §§  61,  G8),  is  directory  merely,  and 
the  omission  to  comply  with  these  requirements  within  the  prescribed  time,  will 
not  vitiate  the  proceedings,  or  invalidate  a  conveyance  of  property  made  hy  the 
trustees.     AVood  v.  Chapin,  13  N.  Y.  509. 

The  provision  in  the  statute  limiting  the  time  for  a  referee  to  make  his  rejiort, 
itc,  is  merely  directory.  An  extension  of  the  period  beyond  a  year,  does  not 
work  a  discontinuance  of  the  proceedings.  Matter  of  Empire  City  Bank,  18  N. 
Y.  200. 

The  statute  (2  Pu  S.  369,  §  38),  which  requires  the  sale  of  land  under  execution, 
where  it  consists  of  known  lots  or  parcels,  to  be  made  separately  and  not  in  gross, 
is  directory,  and  though  a  sale  made  in  gross  is  voidable  at  the  instance  of  the 
party  aggrieved,  it  is  not  void.     Cunningham  v.  Cassidy,  17  N.  Y.  276. 

A  surrogate  is  required  by  1  E.  S.  447,  §  10,  on  granting  letters  of  administra- 
tion, to  take  from  the  applicant  a  bond  with  two  or  more  sureties ;  yet  the  omis- 
sion to  do  so  is  not  jurisdictional,  and  can  be  amended.  Bloom  v.  Burdich,  1 
Hill.  130. 


DIRECTORY  AND   IJIPERATm:   STATUTES.  223 

The  stat.  5  Eliz.  c.  4,  requires  the  binding  of  an  apprentice  to  be 
for  seven  years ;  and  the  41st  chiuse  avoicls  all  mdentures  made 
otherwise  than  according  to  that  law;  yet  it  is  estabUshed  by  de- 
cisions, that  indentures  lor  a  less  time  are  voidable  only,  as  between 
the  parties.^'  ]n  the  case  before  cited  of  Pearse  v.  Monice,  Lord 
Denman  said  :  "  It  is  extraordinary  tliat  there  should  be  cases  in 

a  It.  V.  Ht.  Nicholas,  iii  Ipswich,  IBiirr.  S.  C.  91. 

^Vhcl■l',  by  a  statute,  deeds  executed  by  commissioner  of  loans  are  required  to 
be  subscribed  by  two  witnesses,  and  but  one  witness  subscribed  as  such,  but  the 
deed  was  duly  acknowledged,  it  was  held  good.     Hatch  v.  Benton,  6  Barb.  37. 

A  provision  of  the  statute  (Code.  §  289),  that  an  execution  against  a  married 
woman,  shall  direct  the  levy  and  collection  of  the  amount  against  her  from  her 
separate  property,  and  not  otherwise,  is  directory  merel}'.  Thompson  v.  Ser- 
geant, 15  Abbott.  452.  And  iu  general,  whore  a  statute  requires  an  official  act  to 
be  done  by  a  given  day,  for  a  public  })urpose,  it  shall  be  construed  as  merelj'  di- 
rectory in  regard  to  the  time.     Ex  parte  Heath,  3  Hill.  42. 

The  provision  of  the  Code  which  requires  a  judge  by  whom  a  cause  is  tried 
without  a  jury,  to  file  his  decision,  in  writing  within  twenty  days  after  the  trial, 
is  simply  directory.    Stewart  v.  Slater,  6  Duer.  84. 

The  provision  of  the  city  charter  of  New  York,  that  every  person  ai^pointed  to 
office  under  the  citj'  government  shall  take  the  oath  of  office  before  the  mayor,  has 
been  held  to  be  merely  directory;  if  it  cannot  be  so  taken,  it  may  be  adminis- 
tered by  some  other  officer.     Caniff  v.  The  Mayor,  &c.,  4  E.  D.  Smith,  430. 

A  statute  requiring  the  court  to  limit  the  time  of  the  sentence  of  a  convict,  so 
that  his  imprisonment  in  the  state  prison  shall  expire  between  May  and  Novem- 
ber, is  merely  directorj^;  and  a  failure  to  comply  with  such  requirement  does  not 
render  the  sentence  void.     Miller  v.  Fiukle,  1  Parker  Crim.  R.  374. 

This  class  of  cases  must  not  be  confoi;nded  with  those  where  a  power  or  fran- 
chise has  been  created  by  statute  which  fixes  or  jjrescribes  the  mode  of  its  exer- 
cise. In  such  cases,  the  power  must  be  exercised  in  the  mode  pointed  out  in  the 
act,  and  iu  no  other,  and  those  upon  whom  it  is  conferred,  are  confined  strictly  to 
the  act  creating  it.  Head  v.  Armory,  The  Providence  Ins.  Co.,  2  Cranch.  127. 
In  such  cases,  the  act  is  the  enabling  statute ;  it  creates  all  the  power  that  is  pos- 
sessed, and  all  who  act  under  it,  must  clothe  their  proceedings  with  all  the  solem- 
nities jn-cscribed  by  the  power  which  the  act  demands.  When  a  statute  directs  a 
person  to  do  a  thing  in  a  certain  time,  without  any  negative  words  restraining  him 
from  doing  it  afterwards,  the  naming  of  the  time  will  be  considered  as  directory 
to  him,  and  not  a  limitation  of  his  authority.  Pond  v.  Negus,  3  Mass.  232; 
People  V.  Peck,  11  Wend.  C04;  Ex  parte  Heath,  &c:,  3  Hill.  42;  People  v.  Holley, 
12  Wend.  486;  Gale  v.  Mead,  2  Denio  232;  The  People  v.  Allen,  6  Wend.  480; 
People  v.  Dawson,  25  N.  Y.  399;  The  People  v.  Cook,  14  Barb.  290,  2;  Barnes  v. 
Badger,  41  Barb.  98,  9. 

A  statute  however,  which  declares  "  it  shall  be  the  duty  of  the  supervisors,  &c., 
to  raise  a  certain  sum  of  money  by  tax  for  the  county  buiHings,"  is  mandatory, 
and  the  courts  can  compel  them  to  execute  it.     Caswell  v.  Allen,  7  John.  63. 

The  words  shall  or  may,  when  used  in  a  statute,  are  imperative  only  when  the 


224  DHIECTOEY  AND   IMPEHATR'E   STATUTES. 

wliieli  it  has  been  held,  that  the  words  '  null  and  void,'  should  not 
have  their  usual  meaning ;  but  the  word  '  void'  has  certainly  been 
constiiied  as  '  voidable'  where  the  pro\iso  was  mtroduced  in  faror 
of  the  pai-ty  who  did  not  wish  to  avoid  the  instrument,  etc." 
("  Volenti  non  Jit  iujuria.)  Per  Patteson,  J.,  "In  Pv.  v.  Hipswell 
and  Pi.  V.  Gravesend,  the  court  has  refused  to  carry  that  mode  of 
constniction  fiu'ther,  and  has  given  the  words  '  null  and  void,'  tlieii- 

public  iuterests  or  rights  are  conceruecl.  Malcolm  v.  Rodgers,  5  Cow.  188.  And 
the  rule  is  general,  that  where  a  duty  is  imposed  upon  officers  by  statute,  whether 
by  words,  which  are  peremptory  in  themselves,  or  merely  permissive,  they  have  no 
discretion  to  refuse  its  performance  as  against  a  party  having  an  absolute  interest 
in  it.     Martin  v.  Mayor,  &c.,  1  Hill.  545. 

And  in  all  cases,  in  the  courts,  and  especially  in  courts  of  inferior  jurisdiction, 
where  the  authority  to  proceed  is  conferred  by  statute,  and  where  the  manner  of 
obtaining  jurisdiction  is  prescribed  by  the  statute;  and  in  all  cases  where  one 
may  be  divested  of  his  estate  by  a  proceeding  under  statute- authority,  the  mode 
of  proceeding  directed,  is  mandatory,  and  must  be  strictly  complied  with,  or  the 
proceeding  will  be  utterly  void.  Corwin  v.  Merritt,  3  Barb.  341;  Harrington  v. 
The  People,  6  Barb.  G07;  The  People  v.  Common  Council  of  Brooklyn,  22  Barb. 
405;  Bloom  v.  Burdick,  1  Hill.  130;  People  v.  Schermerhoru,  19  Barb.  541;  Ex 
parte  Common  Council  of  Albany,  3  Cow.  358;  Barnard  v.  Vich,  21  Wend.  8U; 
Brisbane  v.  Peabody,  3  How.  Pr.  E.  109;  Eodgers  v.  Murray,  3  Paige  390;  At- 
kins v.  Kiunan,  20  Wend.  249;  Sherwood  v.  Eeade,  7  Hill.  431;  Sharp  v.  Spier,  4 
Hill.  7C;  Morse  v.  "Williamson,  35  Barb.  472;  Sherman  v.  Dodge,  G  John.  Ch.  107; 
Denning  v.  Smith,  3  id.  331;  Cohoes  Co.  v.  Goss,  13  Barb.  138;  Hubbell  v.  Wel- 
don,  Lalor  lb9.  The  true  distinction  is  this:  where  the  provision  of  the  statute 
is  the  essence  of  the  thing  required  to  be  done,  and  by  which  jurisdiction  to  do  it 
is  obtained,  it  is  mandatory;  otherwise  when  it  relates  to  form  and  manner,  and 
where  an  act  is  incident,  or  after  jurisdiction  has  been  obtained,  it  is  dlreciory. 
Marshall  v.  Langworthy,  6  Hill.  046;  Striker  v.  Kelly,  7  Hill.  9. 

There  is  a  class  of  cases  which  hold,  that  whether  a  statute  is  to  be  regarded  as 
directory  omoi,  is  made  to  depend  upon  the  employment,  or  failing  to  employ 
negative  words  which  import  that  an  act  shall  be  done  in  a  partictilar  manner  or 
time,  and  not  otherwise.  Slayton  v.  Hulings,  7  lud.  144;  King  v.  Inhabitants  of 
St.  Gregory,  2  Ad.  &  El.  99.  This  rule  does  not  appear  to  be  universal.  The 
use  of  negative  words,  is  very  often  conclusive  of  an  intent  to  impose  a  limitation, 
but  their  absence  is  by  no  means  equally  conchasive  that  the  statiite  was  not 
destined  to  be  mandatory;  this  was  held  in  District  Township  v.  Dubuque,  7 
Iowa  284.  Lord  Mansfield's  rule  is  doubtless  a  better  one,  that  whether  the 
statute  was  mandatory  or  not,  depended  upon  whether  the  thing  directed  to  be 
done  was  the  essence  of  the  thing  required.  Eex  v.  Locksdale,  1  Burr.  447.  This 
is  doubtless  the  general  New  York  rule,  as  to  the  duties  of  public  officers.  A 
htatute  directing  the  mode  of  proceeding,  is  directory,  and  not  to  be  regarded  as 
essential  to  the  validity  of  the  jiroceedings  themselves,  unless  it  be  so  declared  in 
the  statute.  People  v.  Cook,  14  Barb.  290,  S.  C.  8  N.  Y.  67.  In  other  cases  they 
are  directory,  when  they  relate  to  some  immaterial  matter  where  a  compliance  is 


DIRECTORY  AND  IMrERATIVE  STATUTES,  225 

full  effect."  Per  WLllianis,  J.,  "  No  instance  of  that  constniction  of 
'void'  as  voidable,  has  been  given  except  in  settlement  cases:"  (srd 
qmvrc)  ;  "  and  in  these,  I  do  not  know  why  the  obtaining  of  a  set- 
tlement should  not  have  been  held  to  be  'an  intent  and  purpose' 
witliin  tlie  meanuig  of  the  enactments  then  in  question."  See  Gov- 
ernors of  Bristol  Poor  v.  Wait,  a  And  in  Pveg.  v.  The  Inhabitants 
of  Fordham,  b  Coleridge,  J.,  said,  "  I  decline  puttmg  any  constrac- 
tion  upon  the  words  '  of  no  forc^e  and  validity.'  AVords as  strmgent 
as  these,  have  been  modified  in  many  of  the  old  cases;  but  I 
should  be  soiTy  to  extend  that  mode  of  inteipretation.  But  Avhere 
the  efiect  niay"^be  grannnatically  confined  to  the  clause  immechate- 
ly  preceduig,  and  there  is  as  good  reason  (so  far  as  the  language  is 
concemed),  for  one  inteqiretation  as  the  other,  one  may  fahiy  look 
at  the  consequences  of  each  intei-pretation,  in  order  to  determine 

al  A.&E.  IGl.  Ml  A.  &  B.  88. 

matter  of  convenience  rather  than  substance.  People  v.  Schermerliorn,  19  Barb. 
558.  But  when  a  power  to  affect  property  is  conferred  by  statute  upon  those  who 
have  no  personal  interest  in  it,  such  power  can  be  exercised  only  in  the  manner 
and  under  the  circumstances  specified  ;  the  power  must  be  strictly  pursued,  id. 
Strict  compliance  is  necessary  to  confer  jurisdiction,  id.  559.  This  makes  it 
mandator}'. 

A  similar  rule  seems  to  have  been  adopted  in  the  state  ol  Michigan,  in  a  case 
involving  the  validity  of  proceedings  in  the  sale  of  lauds  for  taxes,  which  is  : 
"  What  the  law  requires  to  be  done  for  the  protection  of  the  taxpayer  is  nianda- 
iory,  and  cannot  be  regarded  as  directory  merely.  Clark  v.  Crane,  5  Mich.  154. 
I  understand  the  same  rule  prevails  in  Illinois;  see  Marsh  v.  Chestnut,  1-i  HI.  223. 
In  Massachusetts,  Chief  J.  Shaw  laid  down  the  rule,  in  a  case  involving  the  legal- 
ity of  a  tax  under  the  provisions  of  a  statute,  as  follows:  "  One  rule  is  very  plain 
and  well  settled,  that  all  those  measures  which  are  intended  for  the  security  of 
the  citizen;  for  securing  an  equality  of  taxation;  and  to  enable  every  one  to  know 
with  reasonable  certainty,  for  what  real  and  i^ersonal  estate  he  is  taxed,  are  con- 
ditions precedent;  and  if  they  are  not  observed,  he  is  not  legally  taxed,  and  he 
may  resist  it  in  any  of  the  modes  authorized  by  law  for  contesting  the  validity  of 
the  tax.  But  many  regulations  are  made  by  statute,  designed  for  the  information 
of  assessors  and  officers,  and  intended  to  promote  method,  system  and  uniform- 
ity in  the  modes  of  proceeding,  the  compliance  or  noncompliance  with  which 
does  in  no  respect  affect  the  rights  of  fcaxi;)aying  citizens.  These  may  be  con- 
sidered as  directory;  officers  may  be  liable  to  animadversion,  perhaps  to  punish- 
ment, for  not  observing  them,  but  yet  their  observance  is  not  a  condition  prece- 
dent to  the  validity  of  the  tax."  Torry  v.  Milbury,  21  Pick.  G7.  In  Wisconsin, 
the  rule  as  to  what  are  directory  statutes,  is  this:  "  Where  there  is  no  substantial 
reason  why  the  thing  to  be  done  might  as  well  be  done  after  the  time  prescribed 
as  before;  no  presumption  that  allowing  it  to  be  so  done,  it  may  work  an  injui*}' 
or  wrong;  nothing  in  the  act  itself,  or  in  other  acts  relating  to  the  same  subject 
matter,  indicating  that  the  legislature  did  not  intend  that  it  should  rather  be 
done  after  the  time  prescribed,  than  not  to  be  done  at  all;  there  the  courts  as- 

29 


22G  DIEECTOEY  AND  IMrEEATnT]:   STATUTES. 

tlie  clioicc.  It  is  said  that  the  whole  rate  shall  be  mill  and  void  if 
the  form  fail  to  satisf}'  any  one  of  numerous  requisites  prescribed. 
But  if  you  confine  the  clause  of  avoidance  to  the  last  requisite,  the 
enactment  becomes  so  reasonable  and  easy  m  practice,  that  one  is 
glad  to  find  the  construction  admissible."  Per  Lord  Denman : 
"Perhaps,  this  discussion,  and  others  on  similar  phrases,  may  in- 
duce the  legislature  to  say  on  future  occasions,  in  Avliat  respects 
they  mean  any  particular  provisions  to  be  void,  which  they  declare 
to  be  so,  in  general  terms ;  and  what  consequences  they  uitend, 
should  result  from  this  invahdity.  In  the  absence  of  this,  we  have 
gi'eat  ditficulty  in  all  such  cases." 

Yet,  wlien  a  local  statute  enacted  that  certain  guardians  should 
have  power  to  bmd  children  apprentices,  "  provided  such  chikben 
be  not  bound  for  a  longer  term  than  until  they  shall  liave'  attained 
certain  specified  ages,"  it  was  held,  that  an  indenture  binding  a 
boy  for  a  longer  term  than  that  allowed  by  the  act,  was  not  abso- 
lutely void,  but  only  voidable,  a  Per  Lord  Denman  :  "This  is  as 
mild  a  form  of  dh-ecting,  and  only  directing,  as  can  be."  Taunton, 
-T.,  thought  "  the  enactment  of  a  iDcrmissive  nature,  &c." 

It  will  be  seen  hereafter  under  the  head  of  penal  statutes,  and  the 
strict  rales  of  constniction  applied  to  such  cases,  that  the  words 
"  utterly  void,"  and  "utterly  null  and  void,"  have  been  restrained 
and  cut  down  in  other  cases  besides  those  relating  to  the  settlement 
of  the  poor,  to  which  Mr.  J.  Williams  confined  them  m  his  obser- 
vations in  the  case  of  Pearse  v,  Monice  before  cited.  True  it  is, 
that  the  most  nimierous  instances  of  a  wide  and  spirited  departure 
from  the  words  of  the  statute  occur  in  this  branch  of  the  law ; 
whicii  as  being  directed  by  the  constitution  of  the  country  to  be  ad- 
mmistered  by  country  gentlemen,  ought  to  have  been  more  entirely 
free  fi-om  evasions  of  its  letter,  and  nice  and  subtle  distinctions. 

The  statute  43  of  Ehzabeth,  c.  2,  passed  in  IGOl,  never  receii^ed 
a  just  construction,  foimded  upon  the  ^^■ords  of  the  act,  "  asinhabi- 

a  E.  V.  The  Inhabitants  of  St.  Gregory,  2  A.  &  E.  99. 

Bume,  that  the  intent  was,  that  if  not  done  within  the  time  prescribed,  it  might  be 
done  afterwards.  But  when  any  of  these  reasons  intervene,  then  the  limit  is 
established.     State  v.  McLean,  9  Wis.  292. 

In  Illinois,  it  is  held,  that  under  a  directory  statute,  a  duty  should  be  performed 
at  the  time  specified,  but  may  be  valid  if  performed  afterwards.  Under  a  per- 
emptory statute,  the  act  m\i8t  be  performed  at  the  time  specified.  Webster  v. 
French,  12  111.  302. 

And  in  general,  it  may  be  laid  down  as  a  rule,  that  when  a  statute  directs  cer- 
tain proceedings  to  be  done  in  a  certain  way,  or  at  a  certain  time,  and  the  form, 
or  period,  does  not  appear  essential  to  the  judicial  mind,  the  law  will  be  regarded 
as  directory,  and  the  proceedings  under  it  will  be  held  valid,  though  the  com- 
mand of  the  statute  as  to  form  and  time  has  not  been  strictly  obeyed;  the  tiiae 
and  manner  not  being  the  essence  of  the  thing  required  to  be  done. 


DIRECTORY  AND   IJirERATIVE   STATUTES.  227 

tujit"  aiul  "  occupier,"  till  the  year  1810,  iii  the  cases  of  Rex.  v. 
Nicliolson,  and  AVilliams  v.  Jones, «  when  the  law  upon  this  subject 
was  for  the  lirst  time  settled.  Li  the  case  of  liex  v.  The  Mei-sey 
and  Irwell  Navigation  Company,  Parke,  J.,  says,  "Many  of  the 
early  cases  of  rateability  seem  to  have  proceeded  upon  a  disposi-- 
tion  of  the  court,  (pardonable,  but  perhajxs  not  strictly  coiTect,)  to 
extend  the  operaticjn  of  the  statute  of  Elizabeth,  so  as  to  include 
as  large  a  fund  as  possible  in  the  rate."  h 

Tlie  stat.  3  Wni.  and  Mary,  c.  11,  s.  7,  says  that  any  unmanied 
person /(o^  IkicIjkj  child  or  c/illdicn,  may  gain  a  settlement  by  hiring 
and  service  for  a  year ;  and  yet  a  Avidower,  having  chikh'en  who 
have  gained  settlements  in  their  own  rights,  has  been  deemed  com- 
petent to  gain  a  settlement,  c 

The  stat.  8  and  9  Wm.  3,  c.  70,  declares,  that  no  sciTant  shall 
gain  a  settlement  in  any  parish,  "  unless  he  shall  continue  and  a])ide 
in  the  same  service  for  one  whole  year."  In  the  case  of  E.  v.  Clay- 
hydon.  Lord  Kenyon  said  :  "  It  is  now  too  late  to  say  that  a  con- 
structive service  pursuant  to  a  Iming  for  a  year  wUl  not  confer  a 
settlement,  although  I  very  nnich  doubt  whether  a  gi'eater  certain- 
ty on  this  subject  would  not  have  been  obtamed  by  attending  strictly 
to  the  words  of  the  act  ."  And  again  in  II.  v.  St.  Maiy  Lambeth  : 
— "If  this  point  were  not  encumbered  with  decisions,  and  we  were 
to  revert  to  the  words  of  the  act  of  Parliament,"  etc.  So  in  E.  v. 
King  Pyon's,  Lord  Ellenborough  said,  "I  do  not  mean  to  dis- 
turb any  of  the  cases  which  have  been  already  decided,  but  I  am 
not  inclined  to  cany  any  of  the  decisions  fini/ier  sfill  froui.  the 
l^lain  luords  of  the  ad.'' 

The  words,  "poor  person  who  shall  be  brought  before  any  justice 
for  the  purpose  of  being  removed,"  it  was  stated  before,  have  been 
construed  to  mean  "the  question  concerning  the  removal  of  any 
poor  person;"  being,  says  Lord  Ellenborough,  "the  plain  sense  and 
spirit  of  the  act,  though  somewhat  straming  upon  words  of  it."  d  And 
Le  Blanc,  J.  says,  "  a  contrary  constniction  would  give  effect  to 
the  letter  by  the  repeal  of  the  very  object  of  the  statute  ;  though  I 
cannot  agi'ee  that  every  case,  where  a  constniction  has  been  put 
upon  a  statute,  in  some  instances  directly  contrary  to  the  words  of 
it,  is  a  fit  precedent  to  be  followed  by  us."  e 

In  the  King  v.  The  Justices  of  Leicester,  the  question  arose, 
whether  the  stat.  54  Geo.  3,  c.  81,  was  imperative.  It  was  conten- 
ded on  one  side,  that  before  the  54  Geo.  3,  for  regulating  the  time 
of  hokluig  the  Michealmas  quarter  sessions  was  passed,  all  tlie 
(juarter  sessions  were  holden  under  certain  ancient  statutes,  which 
were  deemed  merely  directory ;  mid  quarter  sessions  holden  at  other 
times  than  specified  in  the  statutes,  were  always  considered  good. 

a  12  East,  34G.  c  Anthony  v.  Cardigan,  2  Bott.  172. 

hdB.&C.  111.  d  Ante,  p.  5o8. 

eR.  V.  Everdon,  9  East,  101. 


228  AITIEMATR-E  AXD  NEGATR-E  STATUTES. 

The  stat.  otfc  Geo.  3,  merely  changed  the  tune  for  holding  the 
Michaelmas  quarter  sessions  fi-om  the  week  after  Michaelmas  to 
the  week  after  the  lltli  of  October :  it  should  therefore  receive  a 
construction  similar  to  that  Avliich  had  been  put  upon  the  earlier 
statutes  made  in  pari  materie,  viz.  that  it  is  directory  only,  and 
not  imperative.  To  this  it  was  answered  : — That  Stat.  54  Geo.  3, 
is  imperative :  That,  admitting  the  former  acts  to  have  been  di- 
rectory, this  statute  seems  to  take  away  the  discretionary  power 
of  the  justices  :  for  it  appoints  a  new  time  instead  of  that  formerly 
fixed.  That,  tliis  must  (if  any  language  can)  be  considered  imper- 
ative. 

In  giving  judgment,  Lord  Tenterden  said,  "Looking  at  the 
earlier  statutes  upon  this  subject,  we  find  that,  by  the  12  Eich.  2, 
c.  10,  the  justices  are  required  to  keep  theu*  sessions  in  every 
quarter  of  the  year  at  least,  but  no  particular  days  are  specified. 
By  the  2  Hen.  5,  s.  1,  c.  4,  they  shall  make  their  sessions  four 
times  in  the  year,  Michealmas,  Epiphany,  Easter,  and  the  Trans- 
lation of  St.  Thomas  the  Martyr,  and  oftener  if  need  be.  The 
modern  statute  merely  substitutes  the  week  after  Michaelmas,  &c. 
So  long  ago  as  the  time  of  Lord  Hale,  the  earlier  statutes  were 
considered  directory  : — 'It  is  very  plain,'  Lord  Hale  says,  'that  the 
quarter  sessions  are  variously  held  in  several  counties,  yet  those 
are  each  of  them  good  quarter  sessions ;  for  these  acts,  especially 
that  of  2  Hen.  5,  are  only  directive  and  in  the  affirmative.'  "It  has 
been  asked,"  proceeds  Lord  Tenterden.  "what  language  will  make 
a  statute  unperative,  if  the  54  Geo.  3,  c.  84,  be  not  so  ?  Negative 
words  would  have  given  it  that  efiect,  but  those  used  are  in  the 
afiirmative  only."  a 

Erom  these  expressions  the  conclusion  is  sometimes  drawn,  that 
"negative  words  will  make  a  statute  imperative,"  which  is  incon- 
testable ;  adding  "words  in  the  affirmative  are  du-ectory  only."  b 
But  where  affirmative  words  are  peremptory,  as  that  "the  forms  of 
proceedings  set  forth  in  the  schedule  annexed  shall  be  used;" 
Lord  Kenyon  observed,  "I  cannot  say  that  these  words  are  merely 
directory ;"  and  a  material  variance  from  the  form  prescribed  was 
in  that  case  held  fatal,  the  justices  not  having  pursued  the  author- 
ity of  the  statute,  c '" 

Negative  words  will  make  a  statute  imperative ;  and  it  is  appre- 
hended, affirmative  mcuj,  if  they  are  absolute,  explicit,  and  peremp- 

a  E.  V.  Leicester,  7B.  &  C.  12.  c  Davison  &  Gill,  1  East,  G4. 

b  Harrison's  Index. 

Note  30. — Affirmative  words  in  a  statute  may  be  construed  as  a  negative  of 
wLat  is  not  affirmed.     Byron  v.  Sundburgh,  5  Texas  R.  428. 

Affirmatives  in  statutes  that  introduce  new  laws,  imply  a  negative  of  all  that  is 
not  in  purview.  So  that  a  law  directing  a  thing  to  be  done  in  a  certain  manner, 
imijlies  that  it  shall  not  be  done  in  any  other  manner.  U.  S.  v.  Case  of  Haa 
Tenals,  1  Paine  40G,  Danes  Abr.  vol.  C,  5'Jl  to  593,  and  cases  cited. 


AFFIRMATIVE   AND   NEGATTV'E   STATUTES.  229 

tory,  and  show  that  no  discretion  is  intended  to  be  given ;  and 
especially  so,  where  jmisdiction  is  confci-red. 

And  with  rog;ird  to  a  form  presciiljed  by  i\ie  act,  it  should  be 
observed  that  where  a  statute  directs  a  pai-ticuLir  mode  of  proceed- 
ing or  gives  a  particular  f(;rm,  that  fonn  nmst  be  observed ; — '^A^oii 
ohnervata forma  infertur  adinillatio  actus  /"  a  Ou  recoverie  est  clone 
en  especial  case  "per  estatnt,  il  coveit  que  home  aver  touts  voles  accord 
al  statut."b  But,  says  Lord  Mansfield  in  li.  v.  Loxdale,  c  "there 
is  a  known  distinction  between  circumstances  which  are  of  the 
essence  of  atlihig  recjuiredto  be  done  by  an  act  of  Parliament,  and 
clauses  merely  directory.  The  precise  timi",  in  many  cases,  is  not 
of  the  essence,  while  on  the  43  Lli/.  c.  '2,  nobody  ever  thought  tlie 
number  of  overseers  discretionary." 

The  1-lth  sect,  of  4  Geo.  4,  c.  75,  (the  Maniage  Act,;  pomts  out 
the  mode  in  which  licenses  are  to  be  obtamed,  and  the  matters  to 
be  sworn  to  by  the  parties  or  one  of  them  ;  and  one  of  those  mat- 
ters, where  either  of  the  parties,  not  being  a  widower  or  widow, 
shall  bo  imder  the  age  of  twenty-one  years,  is,  that  the  consent  of 
the  jjerson  or  persons,  whoso  consent  to  such  man-iage  is  required 
under  the  provisions  of  this  act,  has  been  obtained  thereto.  Then 
the  16th  section  specifies  the  persons  who  shall  have  jiower  to 
consent;  and  proceeds: — "and  such  consent  is  hereby  required 
for  the  man'iage  of  such  person  so  under  age,  luiless  there  shall  be 
no  person  authorized  to  give  such  consent."  The  language  of 
this  section,  Lord  Tenterden  observes,  is  merely  to  reqidre  consent ; 
it  does  not  proceed  to  make  the  maniage  void,  if  solemnized  with- 
out consent.  The  23d  section  enacts,  not  that  the  maniage  shall 
be  void,  but  that  all  the  property  accruing  from  the  maniage  shall 
be  fort'eited,  and  shall  be  secured  for  the  benefit  of  the  mnocent 
party,  on  the  issue  of  the  maniage,  etc.,  d  and  the  act  was  held  to 
be  onlv  dhectoiy. 

"Wliere  the  superior  courts  have  a  juiisdiction,  it  can  only  be 
taken  from  them  by  the  express  words  of  an  act  of  parliament,  or 
by_  necessary  unpiication."e  But  in  8  Bing.  394,  Tindal,  C.  J., 
said,  "Yet  where  the  object  and  intent  of  the  statute  manifestly  re- 
quire it,  words  that  appear  to  be  i)crmissive  onlv,  shall  be  con- 
strued as  obhgatorv',  and  shall  have  the  efi"ect  of  ousting  courts  of 
their  jurisdiction."  Li  that  case,  on  a  full  analysis  of  the  statute 
in  question,  the  courts  thought  the  jurisdiction  was  taken  away. 

The  words  "it  shall  be  laAvful"  are  imperative,  where,  and  "only 
where,  public  duty  requires  the  thing  to  be  done./ 

The  words  "shall  and  lawfully  may,"  were  held  ia  Blewett  v. 
Gordon,  r/  as  explained  by  the  context,  not  to  be  obhgatory ;  and 
see  10  Sim.  470. 

a  2  Inst.  388.  c  1  Burr.  447. 

h  Stat.  Gloucester,  cap.  4.  d  R.  v.  Birmingham,  8  B.  it  C.  20. 

e  Per  Ashurst,  J.,  4  T.  E.  109.  /  See  ante,  p.  604. 

g  1  Dowl.  P.  C,  N.  S. 


230  AJFFIEMATKE   A^B   NEGATRTE   STATUTES. 

The  same  words  in  Steward  v.  Graves  a  were  held  imperative,  in 
accordance  with  the  views  of  the  framers  of  the  act  then  under  con- 
sideration, (7  Geo.  4,  c.  66).  But  the  acts  under  which  the  respec- 
tive companies  were  consituted,  were  very  different. 

"Words  sometimes  var}^  m  their  import,  accordmg  to  tlie  subject 
to  which  tliej  are  appHed.  Hence  it  is  often  said  they  are  to  be 
understood  in  a  certam  sense,  "u-'dlnn  the  vieauwg  of  a  pariicidnr 
ad  ;"  that  is,  they  are  to  be  construed  with  reference  to  the  sub- 
ject-matter to  which  they  are  there  appHed :  so  that  the  same 
words  receive  a  different  construction  in  different  statutes. 

In  Staniland  v.  Hopldns,  b  Lord  Abinger  said,  "  The  court  is  well 
aware  of  the  difficulty  of  puttmg  a  construction  free  fi-om  doubt 
and  perplexity  on  this  act  of  parliament  (the  municipal  corpora- 
tion act)  arising  fi'om  the  endeavou.r  to  frame  by  one  act  of  parlia- 
ment one  universal  charter  for  all  municipal  corporations  and  to 
combine  with  that  object,  all  the  prmciples  of  cor^wration  law  that 
are  to  be  found  in  a  long  series  of  juihcial  decisions." 

General  words  in  an  act  of  parliament  are  often,  where  the  sense 
requires  it,  and  m  furtherance  of  the  intention,  to  be  taken  dis- 
tributely,  "reddendo  singula  singulis.'''  Tliey  are  thus  applied  to 
the  subject-matter  to  which  they  appear  by  tlie  context  most 
properly  to  relate,  and  to  which  they  are  really  most  applicable. 
Thus  the  words  "  according  to  the  provisions  of  the  said  act,  and 
of  this  act,"  obviously  import  that  the  requisitions  of  two  acts,  (that 
act  itself,  and  another  act  therein  before-mentioned,)  in  then-  re- 
spective particulars  are  to  be  duly  complied  with;  as  if  the  one  un- 
der its  circimistances  require  signature  to  an  instrument  only,  and 
the  other  that  it  be  under  hand  seal,  c 

Thus  also,  in  the  construction  of  the  words,  "for  money  or  other 
good  consideration  paid  or  given"  in  the  stat.  13  Eliz.  c.  5,  "paid" 
is  refen-ed  to  money,  and  " given"  to  "consideration."  A  man  de- 
vised to  "A.  B.  100  sheep,  ten  bullocks,  and  10/.  payable  quarter- 
ly ;"  these  words  payable  cjuarterly,  have  reference  to  the  rent ; 
for  ten  bullocks  per  aimimi  camiot  be  dehvered  quarterly. 

In  Keg.  V.  Cumbervvoiih  Half,  d  where  the  words  were,  "the  feed- 
ing of  a  cow  by  and  on  the  land."  Patteson,  J.,  said  :  "  I  think 
we  must  say  '  reddendo  singula  singulis,'  that  the  feeding  was  to  be 
'on'  the  land  while  there  was  food  on  it,  and  by  the  owner  of  the 
land  with  hay,  at  other  times." 

In  Ft.  V.  Faulkner,  the  words  of  an  act  were  made  to  have  a  sen- 
sible constniction,  by  being  taken  chstribu lively.     A  power  of  com 
mitment  for  contempt  is  not  to  be  vested  by  an  inferential  con- 
struction of  an  act  of  parliament,  because,  in  a  general  clause,  it 
invests  a  commissioner  with  the  character  of  a  judge  of  record,  e 

a  2  M.  &  G.  7C0.  /;  9  M.  &  W.195. 

c  7  B.  &  C.  570.  d  2  Q.  B.  Rep.  p.  49. 

el  C,  M.  &E.525. 


REMEDIAL  STATUTES.  231 

Though  a  statute  gives  inaccurate  iifimes  to  things,  if  the  court 
can  discover  its  meaning,  it  will  so  expound  it,  as  to  give  force  to 
tlie  intention  of  the  k'gishiture ;  thus  it  seems  a  statuable  requisi- 
tion of  tlio  "gi'eat  seal  of  Great  jhitain"  (used  improperly,  since 
the  old  great  seal  was,  soon  after  the  union  with  Ireland,  destroyed 
in  the  presence  of  the  Lord  Chancellor),  is  substantially  satisfied 
by  the  use  of  the  great  seal  of  the  United  Kingdom,  a 

So  much  for  the  text,  or  letter,  which  has  largely  engaged  our 
attention.  The  sense  and  spirit  of  an  act,  however, — its  scope  and 
intention,  are  i)rimarily  to  be  regarded  in  the  constiniction  of 
statutes,  and  it  matters  not  that  the  terms  us(;d  l)y  the  legislature 
in  deliveruig  its  commands,  are  not  the  UKJst  a])t  to  express  its 
meaning,  j)rovided  the  object  be  plain  and  intclligiljle,  and  ex- 
pressed with  sufhcient  distinctness,  to  enable  the  judge  to  collect  it 
from  any  part  of  the  act.  The  object  once  understood,  judges  are 
so  to  construe  an  act,  as  to  suppress  the  mischief  or  advance  the 
remedy.  But  yet  the  court  is  not  at  lil)erty,even  for  that  purpose, 
to  introduce  or  exclude  Avords  from  any  clause  of  a  statute.',  but  is 
bound  to  construe  the  words  which  the  clause  contauis,  with  refer- 
ence always  to  that  which  appears  to  be  plamlj^  and  manifestly  its 
object,  b 

A  remedial  act  shall  be  so  construed  as  most  eifectually  to  meet  ^. 
the  beneficial  end  in  view,  and  to  prevent  a  failure  of  the  remedy,  y 
As  a  general  rule,  a  remedial  statute  ought  to  be  construed  hber- 
ally.  Receiving  an  equitable,  or  rather  a  benignant,  interpreta- 
tion, the  letter  of  the  act  will  be  sometimes  enlarged,  sometimes 
restrained,  and  sometimes  it  has  been  said,  the  construction  made 
is  contrary  to  the  letter :  which  should  l)e  read — ultra  the  letter, 
and  confined  to  ancient  statutes.  ^' 

Thus,  it  is  laid  down,  that  a  statute  may  be  extended  by  con- 
struction, to  of  her  cases  within  the  same  mischief  and  occasion  of 
the  act,  though  not  expressly  within  the  words.  The  stat.  9  Eich. 
2,  c.  3,  gives  a  wi-it  of  error  to  him  in  reversion,  "if  tenant  for 
life,  tenant  by  curtesy,  &c.,  lose  in  a  '' pixvcipe  ;"  resolved,  that 
although  the  statute  speaks  only  of  reversions,  yet  remainders  are 
also  taken  to  be  within  the  purview  thereof,  c 

a  R.  V.  Bullock,  1  Taunt.  80.  c  Winchester's  case,  3  Rep.  4. 

h  Bloxam  &  Elsce,  6  B.  &  C.  174. 

Note  31.— In  construing  a  remedial  statute,  which  has  for  its  end  the  jiromo- 
tion  of  important  and  beneficial  public  objects,  a  large  construction  is  to  be  given, 
■when  it  can  be  done  without  doing  violence  to  its  terms.  Wolcott  v.  Pond,  19 
Conn.  597. 

This  rule  applies  especially  in  statutes  giving  a  right  to  appeal,  which  are  to  bo 
liberally  construed  as  in  furtherance  of  justice.  Pearson  v.  Lovejoj-,  53  Barb. 
407.  So  public  statutes,  in  regard  to  public  improvements.  Hudler  v.  Golden, 
36  N.  Y.  446;  Candee  v.  Hey  ward,  37  N.  Y.  653. 


232  EEMEDIAL  STATUTES. 

The  stat.  of  Marlbridge,  cap.  29,  gives  a  remedy  to  tlie  succes- 
sors of  abbots,  priors,  &c.,  ^Uid  bona  eccleske  repetenda."  Bona  ec- 
desice  suce  are  the  words  of  the  statute,  upon  which  Lord  Coke  ob- 
serves :  "  1st.  If  an  obligation  be  taken  from  the  predecessor,  it 
is  within  this  statute.  2d.  The  successor  shall  have,  by  the 
equity  of  this  statute,  an  action  of  trespass  for  cutting  down  of 
trees,  and  carrying  them  away.  Wherein  it  is  to  be  observed,  that 
acts  that  give  remedy  for  wrongs  done,  shall  be  taken  by  equity."  a 

Everythmg  that  can,  by  the  most  beneficial  interpretation,  be 
comprehended  under  the  word  "goods"  in  its  most  enlarged  sense, 
ought,  in  this  case,  to  have  been  embraced  by  that  act ;  but  to  in- 
clude anything  which  could  not,  by  the  most  indulgent  accepta- 
tion, under  any  favorable  ch'cumstances,  answer  to  the  legal  de- 
scription of  "goods,"*  was,  it  is  humbly  conceived,  to  supply  what 
the  legislature  had  omitted,  (whether  designedly  or  otherwise),  and 
therefore  to  make,  and  not  interpret,  law. 

The  same  statute  had  provided  before,  (cap.  G),  that  "  in  feoff- 
ments to  the  heir,  to  defraud  the  lords  of  the  fee  of  their  ward- 
ships, no  chief  lord  should  leese  (lose)  his  ward."  The  act  was 
construed  to  extend  equally  to  a  grant,  fine,  recovery,  lease  and 
release,  confirmation,  or  other  conveyance.  But  then  the  words 
of  the  statute  are  pe?"  Imjusmodifraudem  nvllus  capiialiH,&:c.  By 
such  fraud,  hujusmodi,  "that  is,"  says  Lord  Coke,  "such  in  mis- 
chief, or  such  in  inconveniency ;  and  therefore,  all  other  fraudu- 
lent feofiments,  tending  to  the  same  end,  are  within  the  statute, 
whatsoever  colorable  pretext  they  have."  h 

Such  statutes,  it  is  laid  down,  as  give  remedy  which  was  not  at 
common  law,  shall  be  taken  by  equity ;  as  writ  of  entry  in  casu 
proviso  is  given  by  the  stat.  of  Gloucester,  cap.  6.  And  by  the 
equity  of  the  statute,  a  man  shall  have  a  writ  of  entry  ?w  consimili 
casu.  c  The  words  of  the  13  Eliz.  of  fraudulent  grants  are,  "  Be 
it  therefore  declared,  ordained,  and  enacted,"  &c. ;  and  therefore 
Hke  cases  in  semhiahle  mischief  shall  be  taken  within  the  mischief 
of  this  act.  But  why  ? — by  reason,  it  is  added,  of  this  word  (de- 
clared), whereby  it  appears  what  the  law  was  before  the  making 
of  this  act.  d  In  Glover  v.  Cope,  Lord  Holt  extended  the  32  Hen. 
8,  c.  34,  perhaps  somewhat  questionably,  by  equity,  e 

The  reason  why  a  case,  not  within  the  letter  of  a  statute,  is 
sometimes  held  by  an  equitable  constraction  to  be  within  the 
meaning  of  it,  is,  first,  that  the  lawgiver  could  not  set  dovm.  every 

a  2  Inst.  152.  6  2  lust.  111. 

c  Bro.  Pari.  pi.  20;  Kelw.  96  a,  pi.  6.         d  Co.  Litt.  290  b. 
e  3  Lev.  326;  Show.  281. 

*  A  chose  in  action,  as  an  obligation,  &c.,  is  not  within  the  stat.  21  Hen.  8,  con- 
cerning larceny  by  servants  in  going  away  with,  or  embezzling  their  master's 
goods  to  the  value  of  40s.  Bonds,  indeed,  are  now  liable  to  be  taken  in  execxi- 
tion  by  statute,  1  &  2  Vict.  c.  110,  s.  12. 


REMEDIAL   STATUTES.  233 

case  in  express  terms ;  and,  secondly,  that  a  case  within  the  mis- 
chief must  have  been  intended  to  be  within  the  remedy  of  an  act.  a 

Plowden  (after  Aristotle)  points  it  out  as  the  best  way  to  form  a 
right  judgment  whether  a  case  be  within  the  equity  of  a  statute, 
to  suppose  the  hiwmaker  present,  and  that  you  have  asked  him  the 
question,  Did  you  intend  to  comprehend  tliis  oaseV  Then  you 
must  give  yourself  such  answer  as  you  suppose  he,  lacing  an  up- 
right and  reasonable  man,  would  have  given.  If  this  be, — "  that 
he  did  mean  to  embrace  it,"  you  may  safely  hold  the  case  to  be 
within  the  equity  of  the  statute  ;  for  while  you  do  no  more  than  he 
would  have  done,  you  do  not  act  contrary  to  the  statute,  but  in 
conformity  thereto,  h 

But  nnist  not  such  a  doctruie  necessarily  lead  to  speculations 
the  most  vague,  and  reasoning  the  most  desultory  ;  to  the  most 
arbitrary  and  the  most  convicting  decisions?  Every  judge  is  un- 
fortunately in  the  case  here  supposed,  to  answer  for  himself,  and 
not,  as  Cicero  expresses  it,  "  Jaihere  in,  consilio  Ic^jan.''  Is  he  not 
sure  to  make  the  answer  favorable,  whenever  he  inclmes  to  think 
a  case  within  the  mischief?  Such  a  notion  surely,  could  only  be 
supported,  by  admitting  at  once  as  a  piinciple,  (what  has  been 
broadly  stated,  spealdng  of  old  statutes  which  laid  down  general 
rales  in  the  fewest  words),  that  "judges  have  power  over  statute 
laws,  to  mould  them  to  the  truest  and  best  use,  according  to  rea- 
son and  best  convenience  ;"  c  as  if  the  legislature  had  abdicated 
its  functions,  delegating  all  its  powers  and  duties  to  the  judges. 

Much  sounder,  applied  to  acts  of  our  own  times,  seems  the  doc- 
trine of  Jones,  J.,  in  the  case  of  James  and  Finney,  that  "It  is  too 
general  a  ground,  to  put  cases  upon  statutes,  where  tilings  shall  be 
taken  by  equity ;  but  eveiy  statute  stands  upon  its  particular  rea- 
son, upon  consideration  of  the  parts  of  the  statute, — the  mischief 
before,  and  what  tilings  are  intended  to  be  remedied  by  the  same 
statute.'V^  So,  when  a  statute  commences  with  a  particular  enum- 
eration, no  other  thing  shall  be  taken  by  equity.  Unfortunately, 
many  cases  are  extant  as  authorities,  which  are  inconsistent  with 
the  juster  views  of  the  province  and  duties  of  judges  at  present  en- 
tertained. Lord  Tenderden  obsers^ed :  "  There  is  alw'ays  danger 
in  giving  efifect  to  what  is  called  the  equity  of  a  statute  ;  it  is  much 
safer  and  better  to  rely  on  and  abide  by  the  plain  words,  although 
the  legislature  might  have  provided  for  other  cases,  had  their  at- 
tention been  directed  to  them."  c  The  legislature,  as  was  once  well 
observed  by  Mr.  Justice  Heath,  "  is  always  at  hand,"  to  supply 
deficiencies,  or  to  correct  mistakes. 

Again,  a  remedial  statute  shall  be  extended  by  equity  to  other 
persons  besides  those  expressly  named.  /'  The  statute  of  Circum' 
specie  agatis,  <fcc.,  names  only  the  bishop  of  Norwich,  but  has  been 

a  1  Inst.  2i.  b  Eyston  v.  Studd,  Plow.  467. 

c  Sheffield  &  Eatcliffe,  Hob.  3iG.      d  Jones,  422,  423. 

e  6  B  &  C.  475.  /  Porter's  case,  1  Eep.  25. 

30 


234  REMEDIAL  S^TATUTES. 

always  extended,  by  an  equitable  construction,  to  other  bisliojDs. 
Upon  "v^'lLicll  doctrine  the  foUowmg  observations  were  made  in 
Piatt's  case  : a  "It  is  not  unusual  in  acts  of  parhament,  especiaUj- 
in  the  more  ancient  ones,  to  comprehend  by  construction  a  gcner- 
aJitij,  M'here  express  mention  is  made  only  of  a  parficukir;  the 
particular  instances  being  taken  only  as  examples  of  all  that  want 
redress  in  the  kind,  whereof  the  mention  is  made."  Thus  the  act 
1  Eich.  2,  c.  12,  orders  that  the  Avarden  of  the  Fleet  shall  not  per- 
mit prisoners  in  execution  to  go  out  of  the  prison  by  bail  or  baston, 
yet  it  has  been  adjudged  that  this  act  extends  to  all  gaolers,  b 

The  remedy  given  by  the  9  Ed.  3,  c.  3,  against  executors,  has 
been  always  extended,  by  an  equitable  constniction,  to  adminis- 
trators. And  the  gTound  is  plain,  that  it  reaches  to  all  others  in 
like  degi'ees.  Thus,  where  a  statute  gives  action  of  waste  against 
tenant  for  life  or  years, — by  the  equity  of  the  statute,  the  action  lies 
by  tenant  for  half  a  year  or  less,  c  In  the  matter  of  Briant,  clerk  of 
the  day  rules  in  the  king's  bench  prison,  the  court  held,  that  though 
the  clause  requiring  the  residence  of  the  marshal,  did  not  in  terms 
extend  to  the  other  officers,  yet,  considering  the  duties  of  those 
officers,  in  whom  the  public  reposed  a  considerable  confidence  and 
trust,  etc.,  (fee,  it  Avas  evident  that  the  legislature  intended  to  re- 
quhe  the  personal  residence  of  these  officers,  and  jiarticularly  of 
this  person.f^ 

Again,  a  remedial  statute  shall  be  constmed  by  equity  to  ex- 
tend to  other  things  besides  those  expressly  named.  Uses  were 
not  within  the  stat.  de  donis,  but  "  are  taken  within  the  equity ;"  e 
and  in  Chudleigh's  case,  Lord  Coke  furnishes  numerous  instances 
of  acts  made  "  against  the  fraud  of  uses,"  having  been  construed 
hberally  and  by  equity,  beyond  the  letter./ 

A  statute  made  jjw  bono  publico,  shall  be  construed  in  such  man- 
ner that  it  may,  as  far  as  possible,  attam  the  end  proposed,  g 
Therefore  the  New  Eiver  water  act  was  holden,  although  only  the 
city  of  London  be  therein  mentioned,  to  extend  to  places  adjacent ; 
because  all  statutes  made  for  the  convenience  of  the  pubHc,  ought 
to  have  a  hberal  construction, — to  be  expounded  largely,  and  not 
with  restrictions,  h 

Again,  it  is,  (somewhat  too  generally),  laid  down,  that  all 
statutes  made  to  redress  fraud,  and  to  give  a  speedier  remedy  for 
right,  being  in  advancement  of  justice,  and  beneficial  to  the  pub- 
lic, shall  for  that  reason  be  extended  by  equity,  i 

Again,  a  remedial  statute  will  be  extended  by  equity  to  other 
places  than  those  mentioned  within  a  statute.     Thus,  in  a  question 

a  Plow  30.  ^  2  Jo.  02,  in  Plummcr  and  Whichcot. 

0  Eyston  v'.  Studd,  Plowd.  407.  d  5  T.  E.  509. 

e  Corbet's  case,  1  Eep.  88.     _^  /I  Kep.  131. 

fj  Pierce  and  Hopper,  Str.  253. 

'h  New  Paver  Company  v.  Graves,  2  Vern.  431;  Sty.  302. 

i  Wembish  and  Tallboys,  Plow.  59. 


REMEDIAL  STATUTES.        ^  235 

as  to  tho  riglitfiil  custody  of  a  ward,  thoiigli  it  was  found  by  tlio 
verdict  that  the  ward  in  that  case  bad  in  fact  departed  out  of  the 
house  of  lier  mother,  yet  in  judgment  of  hiw  it  was  held  the  mother 
still  had  the  custody  of  her  ;  such  custody  being  inseparably  an- 
nexed to  the  i^erson  of  the  mother,  _/«?-e  nalune.  a  If  one  in  exe- 
cution makes  his  escape,  and  fhes  into  another  county,  it  may  be 
argued  that  this  shall  bo  an  escape,  although  he  be  taken  on  a 
fresh  suit,  because  the  sheriii'  cannot  have  the  custody  of  him  in 
another  county,  his  authority  not  extending  thither  f  Ijut  it  was 
adjudged  no  escape,  h 

In  like  manner,  statutes  have  been  made  to  extend  by  constrac- 
tion  to  a  finte  not  mentioned ;  or  to  another  time  than  what  is 
mentioned,  in  the  statute.  Tho  stat.  Westm.  2,  cap.  11,  limits  no 
time  within  which  the  accountant  therein  mentioned  shall  l)e  im- 
prisoned ;  yet  it  ought  to  be  done  presentl//,  (27  H.  G,  8,  a.)  and 
the  reason  is  given  in  Fogassa's  case,  that  the  generality  of  tho 
time  shall  be  restrained  to  the  present  time,  for  the  benetit  of  him 
upon  whom  the  pain  may  be  inflicted.  And  a  justice  of  the  peace 
upon  view  of  the  force,  ought  to  connuit  the  offender  presenllij.  c 

So,  a  remedial  statute  shall  be  extended  to  later  provisions  by 
subsequent  statutes.  It  was  before  stated,  and  explained  by  in- 
stances, that  statutes  may  extend  to  matters  of  subsequent  crea- 
tion ;  but  it  is  also  propounded  and  remains  to  be  illustrated,  that 
a  subsequent  statute  may  be,  as  the  expressions  vary,  "  taken 
within  the  meaning,"  or  "  holden  within  the  equity,"  of  former 
statutes.  Thus,  a  devise  to  a  woman,  of  land,  for  term  of  her  life 
or  in  tail  for  her  jointure  and  in  satisfaction  of  dower,  is  a  join- 
ture witliin  the  act  27  Hen.  8,  although  land  was  not  de%'isable  till 
32  Hen.  8.  "  And  it  is  frequent  in  our  books,"  says  Lord  Coke, 
"  that  an  act  made  of  late  time,  shall  be  taken  within  the  equity 
of  an  act  made  long  before.  As  the  stat.  of  Marlbridge,  w^hicli 
was  made  52  Hen.  3,  gave  the  wardship  of  the  heir  of  the  tenant 
who  held  by  knight's  ser\'ice,  notwithstanding  a  feoflfment  made 
by  collusion  ;  at  which  time  and  two  Imndred  years  more  after  ; 
that  is  to  say,  till  the  4  Hen.  7,  c.  17,  which  gave  the  wardship  of 
the  heir  of  cestui/  que  trust,  the  heir  of  cestuy  que  use,  was  not  in 
ward;  and  yet  it  is  held  in  27  Hen.  8,  9  a.  b.,  that  if  cestuy  que 
use  after  tho  stat.  of  4  Hen.  7,  makes  a  feoflfment  in  fee  by  collu- 
sion to  defraud  the  lord  of  his  ward,  it  is  taken  within  the  equity 
of  the  stat.  of  Marlbridge."  (/ 

With  a  lilvo-view,  to  promote  the  object  of  an  act,  the  letter  of 
a  statute  is  sometimes  restrained  by  an  equitable  construction; 
and  it  is  held  that  a  case  out  of  the  mischief  intended  to  be  rem- 
edied by  a  statute,  shall  be  construed  to  be  out  of  the  piu'view, 
though  it  be  within  the  words  of  the  statute,  e    The  words  of  the 

a  Eatclifi"s  case,  3  Rep.  39.  b  Boytou's  case,  3  Eep.  44. 

c  Plow.  45.  (i  Vernon's  case,  4  Eep.  4. 

e  2  Inst.  386. 


236  REMEDUL  STATUTES. 

statute  lately  quoted,  of  2  Westm.  c.  11,  are  general,  that  all 
baililis  and  receivers,  who,  in  passing  their  accounts  before  audi- 
tors assigned,  shall  be  found  in  arrear,  may  be  committed  to  the 
next  gaol :  yet,  if  an  infant  bailili'  or  receiver  be  found  in  arrear, 
he  shall  not  be  committed,  for  he  is  not,  by  reason  of  his  want  of 
discretion,  within  the  equity  of  the  statute.a 

If  a  law  be  made,  that  whoever  does  a  certain  act,  shall  be  ad- 
judged a  felon,  and  suffer  death,  yet,  if  a  madman  do  tliis,he  shall 
be  excused  ;  for,  as  the  action  is  not  to  be  imputed  to  him,  but  to 
an  involuntary  ignorance  brought  upon  him  by  the  hand  of  God, 
he  is  not  within  the  reason  of  the  law.  h 

"  Though  the  words  be  general,"  savs  the  ancient  Plowden, 
"  they  are  to  be  reduced  to  a  particularity  by  exposition  made  ac- 
cording to  the  intent  of  the  act.  Those  statutes  which  compre- 
hend all  things  in  the  letter,  the  sages  of  the  law  have  expounded 
to  extend  but  to  some  things  ;  those  which  generally  prohibit  all 
people  from  doing  such  an  act,  they  have  inteqjreted  to  pennit 
some  persons  to  do  it ;  and  those  which  include  every  person  in 
the  letter,  they  have  adjudged  to  reach  some  persons  only  :  all 
founded  upon  the  intent ;  collected,  by  considering  the  cause  and 
necessity  of  the  act,  and  comparing  one  part  with  another,  and 
sometimes  by  foreign  circumstamces." 

Where  particular  words  are  followed  by  general  ones,  the  latter 
are  to  be  held  as  applying  to  persons  and  things  of  the  same  kind 
with  those  which  precede,  c  The  right  of  voting  in  cities  and 
boroughs  is  conferred  on  the  occupiers  "  of  any  house,  warehouse, 
counting-house,  shop,  or  other  building ;"  a  cowhouse  is  within 
the  act.  The  term  building  is  not  to  be  taken  in  its  largest  accep- 
tation, but  must  be  explained  by  the  accompanying  words.  It 
w^ould  not  include  a  wall  or  bridge,  though  they  are  "buildings  ;" 
but  it  will,  a  cowhouse  or  a  stable.*:?  So,  the  large  general  words 
"  other  tenements  and  hereditaments,"  will  have  to  be  restrained 
to  things  ejusdem  generis  with  those  before  specified.  See  the 
cases  of  Eex.  v.  The  Manchester  "Water  Works,  e  and  R.  v.  Mos- 
ley, /"  where  it  was  adjudged  that  the  word  "hereditaments"  was 
to  be  construed  with  reference  to  the  words  previously  used. 
Those  words  shewed,  that  the  legislature  in  the  act  in  question, 
referred  to  things  of  a  corporal  nature  only. 

Thus  it  appears,  that  the  letter  of  a  remedial  statute  may  be 
enlarged  or  restrained  by  a  liberal,  or  what  is  called  an  equitable 
construction,  and  there  are  also  certain  cases  which  are  of  neces- 
sity, by  construction,  excepted  out  of  statutes.  Such  are  cases  out 
of  the  meaning  of  the  law,  and  therefore  not  held  to  be  within  its 
operation,  though  included  in  the  terms  of  it.     It  is  principally 

a  Zouch  and  Stowell,  Plow.  305.  h  Evston  and  Studd,  Plow.  465. 

c  Sandiman  v.  Breach,  7  B.  &  C.  96;  6  A.  &  E.  729;  1  N.  &  P.  791. 
d  Whitmore  V.  Bedford,  5  M.  &  G.  13.  e  3  D.  &  E.  20;  1  B.  &  C.  680. 
f3D.  &R.  335;  2  B.  &  C.  226. 


HOW  BTATTTES  AKE  TO  BE  CONSTRUED.  237 

with  reference  to  such  cases  that,  lastly,  it  is  said,  that  a  remedial 
statute  shall  be  ex])ouiided  "contrary  to  the  words, '  or  ''contrary 
to  the  general  Avords,"  or  merely  "  contrary  to  the  text ;"  in  all  its 
shapes,  a  questionable  doctrine, — in  its  stricter  sense,  quite  incon- 
sistent with  the  sounder  principles  of  judicial  interpretation,  and 
requirinf^,  it  is  apprehcndod,  to  be  greatly  modilied,  before  it  can 
be  at  all  admitted  as  a  rule  of  construction. 

In  the  great  case  of  the  Posnati,  Lord  Ellesmere's  rule  was : 
"  Words  are  to  be  taken  and  construed  :  1.  Sometimes  by  exten- 
sion ;  2,  sometimes  by  restriction ;  3,  sometimes  by  imphcatiou ; 
4,  sometimes  a  disjunctive  for  a  copulative  ;  5,  a  copulative  for  a 
disjunctive  ;  G,  the  present  tense  for  the  future  ;  7,  the  future  for 
the  present ;  8,  sometimes  by  equity,  out  of  the  reach  of  the 
words  ;  I),  sometimes  words  taken  in  a  contrary  sense  ;  10,  some- 
times figuratively ;  11,  and  many  otlier  hke  constructions.  And 
of  all  these,  examples  be  infinite,  as  well  in  the  civil,  as  common 
law." 

"  Now,"  says  Petyt  in  his  Jus  Parliamentarium,  "  any  one  that 
reads  this,  will  easily  judge  what  the  scope  and  consequences  of 
the  chancellor's  rule  may  be.  And  he  may  as  easily  thscern,  how 
far  it  is  capable  of  being  improved,  to  baffle  and  elude  any  law 
whatsoever,  and  wrest  it  from  its  genuine  and  native  sense  to 
Avliat  you  please." 

•  The  judges  in  Edrich's  case  declared,  that  it  would  be  danger- 
ous to  give  scope  to  make  a  construction  in  any  case  against  the 
express  words,  but  they  added  the  qualifying  words,  "when  the 
meaning  of  the  makers  doth  not  appear  to  the  contrary,  and  when 
no  inconvenience  will  thereupon  follow."  a 

The  true  intent  and  meaning  of  a  statute  is  no  doubt  always  to 
be  regarded  ;  and  to  such  purpose  only,  says  one  of  the  sages  of 
the  law,  ought  the  words  to  be  construed.  6  Constructions,  botli 
of  statutes  and  of  wills,  are  to  be  made  according  to  the  intent  of 
the  fi-amers,  and  not  by  any  strict  or  strained  inteii:)retations  ;  c 
and  sometimes  acts  of  parhament  are  to  be  expounded  difierently 
in  sex,  name,  number,  person,  occasion,  degi-ee,  kc,  from  the  let- 
ter, in  order  to  preserve  the  intent.  "  All  acts  are  to  be  taken  by 
reasonable  construction  ;  and  in  doubtful  cases,  judges  may  enlarge 
or  restrain  the  constniction  of  acts  of  parliament,  according  to  the 
sense  of  the  law-makers."(Z  For  many  times,  things  which  are  with- 
in the  words  of  statutes,  are  not  within  the  j^urview  of  them.  Bene- 
fieial  statutes,  therefore,  have  always  been  taken  and  expounded  by 
equity  ;e  vltra  the  strict  letter,  but  not,  it  is  well  and  wisely  said, 
contra  the  letter.  In  the  language  of  Lord  Bacon,  before  cited, 
words  in  a  statute  may  be  taken  to  a  foreign,  but  never  to  an  un- 

a  5  Hop.  119.  h  Williams  andBerkely,  Plow.  C.  231. 

c  Butler  and  Baker's  case,  3  Eep.  27.     d  Per  Trevor,  J.,  11  Mod.  IGl. 
e  Lord  Buckhart's  case,  37  &  38  Eliz. 


238  HOW  STATUTES  AEE  TO  BE  CONSTEUED. 

reasonable  or  a  repugnant  intent.  "  A  person  ongbt  not  to  think, 
if  lie  have  the  letter  on  his  side  that  he  hath  the  law,  in  all  cases," 
.sa3-s  the  ancient  Plowden ;  "  words  are  only  verberations  of  the 
an"."  "  No  statute  shall  be  interpreted  so  as  to  be  inconvenient 
and  against  reasou."a  "  Words  of  a  statute  ought  not  to  be  ex- 
pounded to  destroy  natural  justice."  b 

For,  there  will  be  some  things  necessarily  and  in  their  nature, 
exempt  fi'om  and  excepted  out  of  all  statutes ;  dispensations  al- 
lowed by  law  and  reason,  and  prevailing  over  any  form  of  words. 
Thus,  for  instance  : — A  man  shall  never  be  a  judge  in  his  own 
cause.  Magna  Charta,  cap.  12,  says,  "  Assisce  non  cojnantur  nisi 
in  suis  comitatibusf'  but  if  a  man  be  disseised  of  a  commote  in  the 
marshes  of  Wales, — that  there  be  not  a  failure  of  justice,— not- 
withstanding this  negative  statute,  the  assize  shall  be  taken  in  the 
county  of  Gloucester.  For  the  lord  marcher  could  not  do  justice 
in  his  own  case  ;  and  if  he  should  not  have  remedy  in  this  case  by 
the  king's  writ  out  of  the  chancery  in  England,  he  should  have 
right,  and  no  remedy  by  the  law  given  for  the  wrong  done  unto 
hnn,  which  the  law  will  not  suffer.  Therefore  this  case,  of  neces- 
sity, is  by  constraction  excepted  out  of  the  statute,  r 

80,  for  a  like  reason,  the  stat.  of  Westm.  1,  cap.  3,  which  gives 
a  re-disseism  to  be  tried  per  jyrimos  juratores,  has  been  so  con- 
strued, that  where  there  was  no  first  jury,  it  shall  be  tried  by 
others ;  regarding  it  as  an  excepted  case  out  of  the  meaning  and 
purview  of  the  act,  though  within  the  words.  "For  the  statute," 
says  Lord  Coke,  "  albeit  it  be  penal,  shall  not  be  so  literally  ex- 
pounded, that,  if  it  cannot  be  tried  per  2^nmos  jurntor€f<,  it  shall 
not  be  tried  at  all ;  for  verba  intellir/i  debent  cum  effedu.  The  case 
of  there  being  no  jurors  at  all  in  the  former  assize,  was,  it  is  plain, 
never  contemplated,  and  the  provision  was  not  meant  to  apply  to 
such  a  case  ; — while  justice  is  promoted  by  its  taking  effect  upon 
the  alios,  whom  the  statute  likcAvise  speaks  of."  d 

The  case  of  a  distress  driven  out  of  the  county,  where  the  manor 
is  in  another  county,  before  cited,  is  another  instance  of  beneficial 
construction,  shewing  that  the  statute  does  not  extend  to  a  case 
within  the  bare  words,  if  it  be  clearly  out  of  the  true  meaning  of 
the  statute  ;  the  purview  not  extending  beyond  the  intent  of  the 
makers  of  the  act.  e 

In  Rex  V.  The  Inhabitants  of  Cumberland,  / —  an  indictment  for 
not  repairing  a  county  bridge, — the  question  was,  whether  the 
certiorari  were  taken  away  from  the  prosecutor  by  the  stat.  1 
Ann.  c.  18,  s.  5  ;  Lord  Kenyon  said  :  "  The  words  of  this  act  are 
very  general :  but  if  in  their  construction  we  were  to  read  them 
in  their  full  extent,  it  would  introduce  a  solecism  in  the  law  ;  for 

a  5  Rep.  Cawdrie's  case.  h  Sty.  81. 

c  2  Inst.  25.  d  2  Inst.  84. 

e  St.  Marlbridgc,  c.  4,  Inst.  107.  /6  T.  R.  154. 


EQUITABLE  CONSTRUCTION.  239 

it  Must  be  remembered,  that  iu  these  cases  the  defendants  are  the 
inhabitants  of  a  county,  and  if  the  indictment  cannot  be  removed 
l>y  ced'iorari,  and  a  suggestion  entered  on  the  record,  '  that  the 
inhabitants  of  this  county  are  interested,'  in  order  to  have  a  trial 
elsewhere,  the  indictment  nmst  bo  tried  by  the  very  persons,  who 
are  the  parties  in  the  cause.  If  this  were  res  irdcgra,  we  should 
consider  whether  the  extensive  wonls  of  this  statute  ought  not  to 
bi;  naiTOwed  in  their  construction,  in  order  to  aiTive  at  that  point 
which  is  the  object  of  all  laws, — the  attainment  of  justice.  AVe 
should  have  been  anxious,  for  reasons  of  substantial  justice,  to 
control  the  extensive  operation  of  the  general  words  of  the  statute 
of  Ann." 

In  law,  all  cases  cannot  be  foreseen  or  expressed  ;  the  object  of 
iiiterpretmg  laws  by  Avhat  is  called  equity,  is  to  supply  as  far  as 
possible,  this  deficiency,  by  a  recuiTcnce  to  natural  principles  of 
justice.  It  is  the  same  with  cases  excepted  by  reason  and  neces- 
sity, out  of  the  prescribed  rules. 

There  are  other  maxims  of  interpretation  relating  to  this  sub- 
ject of  expoimdmg  statutes  by  equity,  deserving  notice  ;  though 
such  doctrines,  founded  sometimes  upon  principle  or  adjudged 
cases,  sometimes  also  depend  upon  mere  dicta,  or  very  question- 
al.)le.  authorities. 

Thus,  it  is  wan-antably  said,  statutes  which  "  give  remedy  for 
wrongs"  shall  be  liberally  construed  or  taken  by  equity.  The 
statutes  de  Eschaetoribus, — et  Artkuli  super  chartas,  cap.  19,  for 
"  restoring  the  mesne  profits  where  a  seisure  had  turned  out  un- 
lawful," speak  only  of  an  ouster  le  mayne;  yet  being  both  bene- 
ficial laAvs,  for  restitution  to  be  made  to  the  party  grieved,  by 
equity  they  extend  to  hveries,  amovcas  manus  upon  petitions,  and 
nionstrons  de  droit,  and  by  like  equity  to  ouster  le  maynes  iipou 
traverses ;  although  traverses  were  not  in  use  at  the  time  of  the 
making  of  these  statutes."  a 

Again,  statutes  which  "  oust  delay,  and  for  expedition  of  justice" 
shall  be  benignly  construed  and  are  extended  by  equity.  Thus, 
the  stat.  Westm.  2,  c.  18,  which  gave  an  elegit,  said,  the  "  sheiifi' 
shall  dehver ;"  yet  being  a  beneficial  law,  by  equity  it  is  extended 
to  e-^ery  other  immediate  oflicer  to  every  other  court  of  record.  1) 
So,  in  the  stat.  of  Westm.  1,  where  "  ancestor"  is  said ;  predeces- 
sors is  taken  by  equity ;c  and  again,  where  "tenant"  is  said, 
vouchee  and  tenant  by  receipt,  (who  are  tenants  in  lair,)  have  been 
included;  for  acts  of  parhament  made  for  suppression  of  false- 
hood practised  for  delay,  as  these  false  vouchci-s  and  assigns  were, 
shall  have  a  benign  inteipretation. 

Where  a  contrary  constniction  would  lead  to  future  disputes 
and  constant  hgitation,  it  should  be  remembered,  that  "bonijudicis 

a  2  Inst.  572.  i  2  Inst.  391,  cap.  40. 

c  Cap.  42. 


240  EQUiTABij;:  construction. 

est  causas  Jit i urn  dlrimerc.'\i  Tims,  iu  a  modem  case,  of  Gale  and 
LawTie,  Lord  Tenterden  said  :  "  This  construction  (that — what- 
ever is  on  board  a  vessel  for  the  purposes  of  the  voyage,  belonging 
to  the  owner,  constitutes  a  ship's  appurtenances,)  furnishes  a  plain 
and  intelligible  general  rule ;  whereas,  if  it  should  be  held  that 
nothing  is  to  be  considered  as  part  of  the  ship  that  is  not  neces- 
sary for  her  navigation  or  motion  on  the  water,  a  door  would  be 
opened  to  many  nice  questions,  and  much  discussion  and  cavil."  b 

No  statute  where  the  letter  is  ambiguous,  shall  be  taken  by 
equity,  to  maintain  a  mischief  contrary  to  the  letter  and  intent  of 
the  statute  ;  "  but  it  shall  be  taken  in  the  better  intent,  and  large- 
ly, to  toll  and  destroy  the  mischiefs  and  "  inconveniences."  This 
doctrine  is  illustrated  by  the  case  before  mentioned,  in  which  the 
stat.  1  &  2  Ph.  &  Mary,  was  held  not  to  extend  to  treason  com- 
mitted out  of  the  realm  ;  but  such  cases  were  to  be  triable  as  be- 
fore, c 

A  statute  which  is  to  take  away  the  common  law  ought  never  to 
iiave  an  equitable  constniction.  See  the  stat.  Westm.  2,  cap.  35, 
abridging  the  six  months  in  which  proclamation  should  be  made 
in  a  certain  case,  to  three  months.  This  branch  restraining  the 
connnon  law,  was  held  to  extend  only  to  the  defendant  in  deed, 
and  not  to  the  defendant  in  law.  d 

A  statute  shall  never  have  an  equitable  construction  to  over- 
throw an  estate,  e  ^- 

As  regards  the  case  of  an  inconvenience  which  rarely  happens, 
opposed  to  mischiefs  "  qure  frequentius  ace  id  unt, "  tlieve  is  some 
nicety  ;  and  upon  the  construction  of  explanatory  statutes,  the 
authorities  are  painfully  conflicting. 

If  the  words  of  a  statute  do  not  reach  to  an  inconvenience  rarely 
happening,  they  shall  not  be  extended  to  it  by  an  equitable  con- 
stniction ;  for  the  objects  of  statutes  are  mischiefs  qme  frequentius 
accidunt.  It  is  good  reason  in  such  case,  and  therefore  somid  con- 
stniction, not  to  strain  the  words  farther  than  they  reach  ;  but  the 
case  is  to  be  considered  as  a  casus  omissus.  It  was  resolved  by 
the  judges  in  Su'  George  Curzon's  case,  upon  the  construction  of 
the  stat.  32  Hen.  8,  giving  power  to  dispose  of  two-thirds  of  a 
man's  land,  &c.,  "  to  and  for  the  advancement  of  his  wife,  prefer- 
ment of  his  children,  and  payment  of  his  debts,"  &c.,  that,  if  there 
be  gi-andfather,  father,  and  divers  sons,  and  the  gi-andfather,  in 
the  life  of  the  father,  conveys  his  lands  to  any  of  the  sous,  it  is  out 
of  the  said  act  of  32  Hen.  8;  for  it  is  not  common  nor  usual,  et  ad 

a  2  Inst.  306.  6  5  B.  &  C  162. 

c  Forster's  case,  11  Eep.  78,  ante,  p.  552.     d  2  And.  149. 
e  2  Inst.  442. 

Note  32. — A  statute  giving  a  right  to  redeem  land  sold  for  taxes  should  receive 
a  liberal  construction.  Dubors  v.  Hepburn,  1  Pet.  1.  So  also  should  a  statute 
avoiding  fraudulent  conveyances.    Bk.  of  U.  S.  v.  Lee,  13  Pet.  107. 


EQUITABLE  CONSTEUCTION.  241 

ca  quefrcqncii/iK.s  (iccldind,jitra  adaplanlur,  and  tlio  father  oiif^lit 
to  have  the  innnediate  care  of  his  sous  and  issue.  ]jiit  if  tlie  fatla-r 
be  dead,  then  the  care  of  them  belon{^s  to  the  grandfather,  and 
then,  if  lie  conveys  any  of  his  hinds  to  any  of  the  said  sons,  it  is 
Avitldn  the  statute,  a 

\j\\i  it  is  no  reason,  when  the  -wijrds  of  an  act  do  sufficiently  ex- 
tend to  an  inconvenience  rarely  happcnuig,  that  they  should  not 
extend  to  it,  as  well  as  it'  it  had  happened  niore  frequently,  because 
it  ha})pens  but  seldom./* 

Statutes  of  explanation  shidl  be  construed  only  according  to  the 
words,  and  not  by  any  manner  of  intendment ;  for  it  is  incongru- 
(jus,  it  is  said,  for  an  explanation  to  be  explained,  c  An  explan- 
atory statute  Ijeing  a  legislative  exposition  of  the  meaning  of 
words  used  in  a  former  statute,  ought  not  to  be  extended  by  an 
equitable  construction.  For  it  Avas  said  by  the  court  in  the  case 
of  Butler  and  leaker,  d  "if  any  exposition  should  be  made  against 
t lie  direct  letter  of  the  exposition  made  b}^  parliament,  there  will 
l)e  no  end  of  expositions."  AVhcn  one  act  is  made  explanatory  of 
another,  the  court  cannot  carry  the  explanation  farther  than  is 
expressed  in  that  act ;  c  it  must  be  constnied  precisely,  and  no  new 
interpretation  can  be  made  of  it.  /' 

j^c'o/i/yY/,  this  rule  of  exposition,  that  statutes  of  explanation 
shall  always  be  taken  literally,  is  peremptorily  denied  by  Ch.  J. 
Hobart.  "  For  no  statute  "law,"  he  says,  "  should  exclude  all 
equity  ;  it  is  impossible  that  an  act  of  parliament  should  provide  for 
every  inconvenience  which  happens  ;  equity  must  necessaril}-  take 
]  ilace  in  the  exposition  of  statutes."  g 

In  the  case  of  the  Dean  and  Chapter  of  Norwich;  it  is  said  ar- 
guendo, and  seems  to  be  admitted  by  the  court.  It  that  statutes  of 
explanation  are  always  to  be  inter[)reted  beneficially.  The  result 
seems  to  be  that,  on  the  one  htmd  explanatory  statutes  shall  not 
be  extended  by  equity  to  new  cases,  and  on  the  other,  wliilst  the 
words  are  not  to  be  strained  beyond  their  fair  import  and  meaning, 
tjicy  shall  yet  have  such  reasonal)le  construction  as  will  stand  with 
the  scope  and  intention  of  the  makers. 

Equitable  construction  has  been  frequently  illustrated  by  the 
doctrines  laid  down  in  the  case  of  the  registry  acts  for  giving  pri- 
oi-ity  to  deeds  and  mortgages,  according  to  the  date  of  the  registry, 
if  a  person  claiming  under  a  registered  deed  or  mortgage  had  no- 
tice of  the  unregistered  prior  deed  when  he  took  his  deed,  and]n'o- 
cured  the  regishy  of  it,  in  order  to  defeat  the  prior  deed,  he  shall 
not,  it  is  held,  prevail  with  his  prior  registry ;  because  that  would 

a  G  Hep.  77.  h  Bole  autl  Ilorlon,  Yaiiglian,  373. 

0  Cro.  Car.  23;  Plowd.  363.  (/  3  llcp.  31  a. 

e  Garth.  396.  /Jo.  3o;  W'iucb.  85. 

<j  2  Roll.  Eep.  500;  "Wiuch.  123;  Sir  W.  Jones,  39. 

/i3Eep.'75. 

31 


242  eqxjttabt:e  construction. 

be  to  counteract  the  iutent  aud  ]3olicy  of  the  statutes,  "U'liich  were 
made  to  j)reYeut,  and  not  to  uphold  frauds.  '■' 

That  notice  of  a  deed,  even  the  most  actual  and  direct,  should 
ever  have  been  admitted  to  supply  the  want  of  its  registration,  has 
been  thought  unwise  and  improper,  and  opposed  to  the  policy  of 
other  countries.  A  more  decisive  opinion  has  been  expressed, 
that  the  equity  decisions  dispensing  with  registry  upon  the  ground 
of  constnictive  notice,  have  led  to  many  inconveniences,  and  much 
uncertainty  and  htigation.  The  greatest  English  lawyers  have  ex- 
pressed then-  regret  that  either  the  registr}^  act  or  the  statute  of 
frauds  should  have  been  broken  in  upon,  and  had  their  utihty 
chminished,  by  construction. 

The  decisions  upon  the  registry  act,  stat.  7  Ann.  c.  20,  s.  1,  and 
upon  the  statute  of  enrolments,  27  Hen.  8,  c.  16,  a  have  proceeded 
upon  the  ground  that  statutes  which  were  designed  to  prevent 
fi-auds,  should  never  be  used  as  a  means  to  cover  them,  h 

Upon  the  statute  of  frauds,  the  view  taken  was,  that  as  it  was 
made  with  a  design  to  prevent  uncertainty,  perjury,  and  contrariety 
of  evidence,  either  in  marriage  or  any  other  treaties,  the  cases  not 
liable  to  these  inconveniences  could  not  be  within  it.  c  But  upon 
this  statute  (of  frauds),  there  can  be  little  doubt  in  the  mind  of  any 
sound  lawyer,  that  there  are  several  decisions  m  which  the  courts, 
in  their  anxiety  to  defeat  injustice,  have  a  little  stretched  the  lan- 
guage of  the  legislature,  d 

Upon  the  fonner  subject  (of  registry),  a  case  Doe  dem.  Eobin- 
son  against  Alkop,  e  came  before  the  court  of  king's  bench  in 
1821.  In  that  case  there  were  two  assignments  of  the  same  lease, — 
of  premises  within  the  county  of  Middlesex,  and  that  executed 
last,  was  registered  first.  The  party  claiming  under  the  second 
assignment  had  full  knoAvledge,  when  it  was  executed,  of  the  prior 
execution  of  the  lirst  assignments.  Abbott,  C.  J.,  said  :  "  A  court 
of  law  is  now  called  upon  for  the  first  time,  to  put  a  construction 
on  the  words  of  this  statute,  by  which  it  is  enacted  that  every  deed 
or  conveyance  that  shall,  after  the  29tli  of  September,  1709,  be 
made  and  executed,  shall  be  adjudged  fraudulent  and  void,  against 
any  subsequent  purchaser  or  mortgagee  for  valuable  considera- 
tion, unless  a  memorial  thereof  be  registered  before  the  registering 
of  the  memorial  of  the  deed  or  conveyance  under  which  such  sub- 
sequent purchaser  or  mortgagee  shall  claim.  Now  it  is  impossible 
that  plamer  words  could  be  used ;  and  I  think,  that,  sitting  m  a 

a  Eqii.  Cases  Al)ri(lt;o(l,  29. 

b  Cheval  v.  NicboUs,  1  Str.  CC4.  ■  Worsley  v.  Demattos,  1  Burr.  4G7.  Le  Neve 
V.  Le  Neve,  3  Atk.  G4G. 

c  Bac.  Ab.  Tit.  Stat.  G. 

d  Knight  v.  Crocldbrd,  1  Esp.  190.     Lavaguc  v.  Staiilcj',  3  Lev.  1. 

eSB.  &A.  142. 

Note  33. — A  statute  shall  never  ha-ve  an  equitable  construction  in  order  to 
ovcrthrov,'  or  divest  an  estate.     Van  Home  v.  Dorrance,  2  Dallas  31G. 


EQUITABLE   CON.STllUCTION.  243 

court  of  law,  we  arc  bound  to  give  cflbct  to  them,  and  tliat  -wo  can- 
not say,  that  this  deed  is  not  fraudulent,  and  void  within  the  mean- 
ing of  this  act,  because  possibly  it  may  timi  out  upon  examinati(jn, 
that  the  defendant  is  entitled  to  some  relief  in  equity.  If  there  bo 
;iny  such  ground,  a  court  of  e(|uity  may  interfere,  and  this  case 
shows  clearly  how  inconvenient  it  wouhl  be,  if  this  court  were  to 
outer  into  any  equitable  considerations.  For  here,  it  is  clear,  that 
ihe  lessor  of  the  plamtii'f  had,  at  all  events,  a  lien  on  the  instru- 
ment of  conveyance.  AVhat  effect  that  might  have  on  a  court  of 
equity,  I  camiot  say,  Init  I  think  it,  at  least,  is  a  fit  matter  for  its 
consideration.  We,  however,  in  a  court  of  law,  must  give  effect  to 
the  Avords  of  the  act." 

Baylcy,  J. — "I  think  tliat  we  are  l)ound,  in  a  court  of  law,  to 
give  elh'ct  to  the  words  of  the  statute.  That  seems  to  have  been 
the  opinion  of  the  judges  in  the  cases  cited,  although  they  thought 
that  a  court  of  equity  would,  in  some  cases,  interfere  to  relieve  the 
]>arty.  It  is  so  laid  down  by  Lord  Hardwicke,a  in  Le  Neve.  v.  Le 
Neve,  and  the  words  of  Lord  Mansfield,  in  Doe  v.  Iloutledge,  are : 
— '  Equity  says,  if  the  party  knew  of  the  imregistered  deed,  his 
registered  deed  shall  not  set  it  aside,  because  he  has  had  that  no- 
tice which  the  act  of  parliament  intended  he  shoidd  have.'  He, 
therefore,  puts  it  as  a  case  in  which  ecpiity  "would  interfere ;  and 
the  circumstances  of  this  case,  show  the  propriety  of  oui'  adhering 
to  the  words  of  the  act ;  for  I  am  by  no  means  clear,  that  "\\e 
should  not  work  great  injustice,  if  we  were  to  decide  in  favor  of 
the  defendant." 

This  decision  is  in  perfect  accordance  with  the  constraction  put 
upon  the  stat.  27  Elii^.  c.  4,  that  voluntary  conversances  are  void 
agauist  subsequent  purchasers  even  with  notice ;  and  with  /Ao.se  de- 
cisions at  law,  the  courts  of  ecpiity  have  liot  interfered ;  wliile  in 
the  case  of  the  registry  acts,  ecpiit}^  has  introduced  a  consti-uction 
nearly,  if  not  entirely,  subversive  of  the  objects  of  such  latter 
statutes.  In  Gooch's  case,  h  Wray,  C.  J.,  said  :  "  If  A.  seised  of 
laud  in  fee,  make  a  fi'audulent  conveyance,  to  the  intent  to  deceive 
and  defraud  purchasers,  against  the  statute  of  27  Eliz.  c.  4,  and 
continues  in  possession,  and  is  reputed  as  owner,  B.  enters  into 
discourse  with  A.  for  the  purchase  of  it,  and  b}^  accident  B.  has 
notice  and  knoAvledge  of  this  fraudulent  conveyance,  and,  notwith- 
standuig,  concludes  with  A.  and  takes  his  assurance  of  him  ;  in 
this  case  B.  shall  avoid  the  said  fraudulent  conveyance  b}'  the 
said  act,  noth withstanding  his  notice  ;  for  the  act  has  by  express 
■words  made  the  fraudulent  conveyance  void  as  to  a  purchaser ; 
and  forasmuch  as  it  is  within  the  express  purview  of  the  act,  it 
ought  to  be  so  taken  and  expounded  in  suppression  of  fraud." 

And,  according  to  the  opinion  of  Lord  AVray,  it  was  imanimously 
agreed  and  resolved  by  the  whole  court  of  common  pleas  (Pasch. 

a  Cowp.  712.  b  5  licp.  GO. 


244:  EQUITABLE   CONSTRUCTION. 

3  Jacobi),  in  evidence  to  a  jnrv  in  an  ejedione  frmcp,  on  a  lease 
made  by  Standen  to  Howse  plaintiff,  against  Biillock  defendant, 
that  T\liere  one  Bullock  had  made  a  fraudulent  conveyance  of  his 
land  witliin  the  said  act  of  27  Eliz.  to  A.  B.  and  C.  and  afterwards 
notwithstanding  offered  to  sell  the  said  land  to  Standen,  and  be- 
fore assurance  thereof  made  by  Bullock,  Standen  had  notice  of  the 
said  fraudulent  conveyance,  and  notwithsanding  proceeded,  and 
took  his  assurance  of  Bullock,  that  Standen  should  avoid  by  the 
same  act,  the  said  fraudulent  conveyance ;  for  the  notice  of  the 
purchaser  cannot  make  that  good,"'  which  an  act  of  parliament 
has  made  void  as  to  him.  "  And  true  it  is,  ' quod  ncn  dedpitur,  qui 
scit  se  decipi.'  But  in  that  case,  the  purchaser  is  not  deceived ;  for 
the  fi-audulent  conveyance,  whereof  he  has  notice,  is  void  as  to 
him,  by  the  said  act,  and  therefore  shall  not  hurt  him,  nor  is  he, 
as  to  that,  m  any  manner  deceived." 

Whatever  doiibts  may  be  entertained  of  the  propriety  of  extend- 
ing the  words  of  statutes  by  equitable  construction,  to  embrace 
other  cases,— conveyances,— times,— places,— persons,— and  things, 

besides  those  contained  and  expressly  mentioned  in  the   act, 

there  can  be  no  question  that  the  words  of  a  remedial  statute  are 
to  be  constnied  largely  and  beneficially,  so  as  to  suppress  the  mis- 
chief and  advance  the  remedy. ''  "It  is  by  no  means  unusual  m 
construing  a  remedial  statute,"  says  a  late  case,  "to  extend  the  en- 
actino-  words  beyond  their  natural  import  and  effect,  in  order  to 
include  cases  wfthin  the  same  mischiefs."  a 

It  is  true  with  us,  only  of  remedial  statutes,  what  Cicero  says  of 
all  laws  :  "  cas  ex  ufilitate  communi, — von  ex  scripiione,  qvce  in  Uteris 
est,  interpretari.''  Premising  that  this,  and  the  opposite  course 
followed  \\ith  penal  statutes,  are  only  secondary  rules,  we  proceed 
to  illustrate  the  doctrine  that  remedial  acts  are  to  be  hberally  con- 
strued. .  1    .1       i.1 

In  the  Magdalen  College  case,  the  question  was,  whether_  the 
queen  was  bound  by  the  general  words  of  the  statute  13  Ehz.  c. 
10,  avoiding  "  all  leases,  gifts,  grants,  feoffment,  conveyances,  or 
estates  to  be  made,  had,  done,  or  suffered,  by  any  master  and  fel- 
■  low  of  a  college  to  any  person,  or  persons,  bodies  politic  or  corpo- 
rate, other  than  for  the  term  of  twenty-one  years,  or  tliree  lives," 
&c.  The  master  and  fellows  had  granted  certain  premises  by  in- 
denture to  the  queen,  her  heirs  and  successors  for  ever,  with  con- 
dition that  she  should,  before  a  specified  day,  convey  and  assure 
the  same  to  B.  Spinola,  a  merchant  of  Genoa.  "  It  was  held  that 
th&  queen  was  bound  by  the  act.  She  is  a  person,— ^r^x  est  per- 
sona mixta;)  and  a  body  pohtic,  (the  case  of  the  Duchy  of  Lan- 

a  2  Y.  &  J,  190. 
KoTE  34— statutes  in  derogatiou  of  the  commou  law  can  not  be  extended  by 
construction  to  embrace  cases  not  fairly  witbin  the  scope  of  the  language  used. 
Curnside  v.  Wbitiuy,  21  N.  Y.  1  18;  Dwelly  v.  Dwclly,  4C.  Jlaine.  377. 


PENAL   STATUTES.  245 

caster.)  The  act  being  general,  and  made  to  suppress  fraud,  shall 
biud  the  queen,  and  the  queen  being  included  within  the  words, 
if  she  shall  be  exenipt,  it  ought  to  be  by  constniction  of  law  ;  and 
as  this  case  is,  the  law  will  not  make  such  constniction,  for  rea- 
sons api)arent  in  the  act  itself;  .srilirrf  the  parhament  have  ad- 
judged '  long  leases  made  by  colh^ges,'' to  be  '  unreasonable,' and 
the  law,  whieh  is  tlu^  perfection  of  reason,  will  never  expound  the 
words  of  the  act  against  reason.  It  was  never  seen,  that  an  act 
made  for  the  maintenance  of  religion,  advancen:ent  of  learning, 
and  exhibition  of  poor  scholars,  (and  therefore  to  be  favorably  ex- 
l)ounded) ;  should  be  so  construed,  that  a  bye-way  should  l)e  left, 
l)y  which  the  said  great  and  dangerous  mischief  should  be  left 
open,  and  the  necessary  and  ])rotitable  rem<'dv  be  suppressed,  and 
the  queen  made  an  instrument  of  injury  and  wrong." 

Lord  Coke  adds,  "that  this  act  has  been  always  constraed-bene- 
licially  to  prevent  all  inventions  and  evasions  against  its  true  in- 
tention :  that  Avhere  the  statute  says — '  masters  and  fellows  of  any 
college,'  be  the  college  incor}iorated  by  that  name,  or  of  '  warden 
and  fellows,'  or  of  '  provost,  fellows,  and  students,'  and  be  the  col- 
lege temporal,  for  the  advancement  of  liberal  arts  and  sciences,  or 
merely  ecclesiastical,  or  mixt :  every  such  college  is  within  the 
])rovision  of  this  act,  and  the  constniction  is  the  same  with  all  man- 
ner of  hospitals  ;  for  this  act  has  always  had  a  benign  and  favor- 
able construction."  a 

Penal  statutes  receive  a  strict  interpretation.  The  general  words 
of  a  penal  statute  shall  be  restrained,  for  the  benefit  of  him  against 
whom  the  penalty  is  inflicted.  ''^ 

a  11  Kep.  G7. 

Note  33.— Peual  statutes  must  be  strictly  coustiued,  aud  never  extended  by 
implication.  Andrews  v.  U.  S.,  2  Story  203;  Strinson  v.  Pond,  2  Curt.  502;  U.  S. 
V.  Ten  Cases  of  Shawls,  2  Paine  162;  Ferris  v.  Atwill,  1  Blatcli.  C.  C.  Pu  151.  The 
proper  course  is,  in  their  construction,  to  search  out  and  follow  the  trtie  intent  of 
the  legislature,  and  to  adopt  that  sense  which  harmonizes  best  with  the  context, 
and  promotes  in  the  fullest  manner  the  apparent  policy  and  objects  of  the  legis- 
lature. U.S.  V.  Winn,  3  Sum.  209;  The  Enterprise,  1  Paine  32.  They  must 
l)ring  the  case  within  the  definition  of  the  law,  but  not  so  strictly  as  to  exclude  a 
case  within  its  words  in  their  ordinary  acceptation.  U.  S.  v.  "SVilson,  Bald.  H. 
70.  Nor  so  as  to  defeat  the  obvious  intention  of  the  legislature.  American  Fur 
Co.  V.  U.  S.,  2  Pet.  366;  U.  S.  v.  Willberger,  5  "Wheat.  56;  U.  S.  v.  Morris,  li 
Pet.  464.  All  its  provisions  must  be  taken  together,  and  interpreted  according  to 
the  import  of  the  words,  so  as  to  give  eSect  to.its  object  and  intent.  The  Harriet, 
1  Story  11.  251.  And  a  further  rule  is,  that  an  offender  who  is  protected  by  its 
U'tter,  cannot  be  deprived  of  its  benefit  on  the  ground  that  his  case  is  not  within 
Its  spirit.  U.  S.  v.  Eagsdale,  Hemp.  R.  497.  "Where  there  is  such  an  ambiguity 
as  to  leave  reasonable  doubts  of  its  meaning,  the  courts  will  not  inflict  the  pen- 
alty.    The  Enterprise,  1   Paine  32.     In  such  a  statute,  the  word  ami  cannot  bo 


246  PENAL   STATUTES. 

It  is  a  maxim  of  the  common  law,  that  "  rcceditur  a  placilis juris, 
pofiiis  quam  injurue  ef  dclicfa  maneant  impunita,"  but  this  applies 
ouly  to  positive  maxims,  pJaclta  juris  rather  than  reqvhe  juris,  a 

If  the  rale  be  one  of  the  higher  sort  of  maxims  that  are  reqidcc 
ratiouak'S  and  not  jwsitivce,  then  the  law  will  rather  endure  a  par- 
ticular offence  to  escape  without  i)unishment,  than  violate  such  a 
rule.  Of  this  latter  Idnd  (regulm  rationcdes)  is  the  rule  that  j)enal 
statutes  shall  not  be  taken  by  equity.  Thus  the  stat.  1  Ed.  6,  c. 
12,  having  enacted  that  those  who  were  convicted  of  stealmg 
liorses  should  not  have  the  benefit  of  clergy,  the  judges  conceived 
that  this  did  not  extend  to  him  that  should  steal  but  one  horse  ; 
and  therefore  procured  a  new  act  for  that  purpose,  in  the  follow- 
ing year. 

Yet  penal  statutes  are  taken  strictl}'  and  literally  only  in  the 
point  of  defining  and  setting  down  the  crime  and  the  jninishmenf; 
and  not  generally  "  in  words  that  are  but  circumstances  and  con- 
veyance in  the  putting  of  the  case."  Thus,  upon  the  statute  of 
Gloucester,  that  gives  the  action  of  waste  against  him  that  holds 
2Jro  termino  vike  vel  aimorum,  if  a  man  holds  but  for  a  year  he  is 

«  Bacou's  Muxims,  51. 

coustrued  to  mean  or.  U.S.  v.  Ten  Cases  of  Shawls,  2  Paine  1G2.  Penal  statutes 
are  also  local  in  their  character,  and  there  can  be  no  recovery  under  them  for  of- 
fences, committed  beyond  the  territorial  jurisdiction  of  the  state.  1  Philemore 
on  International  law  35G;  Ludlow  t.  Van  Piensselaer,  1  John.  93;  Van  Schaick  v. 
Edwards,  2  Caines  3G3.  And  in  all  cases  under  penal  statutes,  where  there  is  a 
question  of  doubt,  the  pariy  of  whom  the  penalty  is  claimed,  is  entitled  to  the 
benefit  of  the  doubt.     Chase  v.  N.  Y.  Cent.  Pt.  E.  Co.,  26  N.  Y.  523. 

A  statute  which  imposed  a  penalty  xipon  any  persuii  who  knowingly,  Ac, 
should  aid  or  assist  a  tenant  in  removing  goods,"  kc,  it  was  held,  by  strict  con- 
struction, to  have  contemj^lated  physical  aid  or  assistance,  and  that  merely  ad- 
vising the  removal,  was  not  within  the  provisions  of  the  act,  nor  was  one  who  con- 
cealed a  portion  of  the  goods.  Strong  v.  Stebbins,  5  Cow.  211;  Palmer  v.  Conley, 
4  Denio  375.  So  too  under  the  same  statute,  where  two  persons  concur,  in  the 
act  of  aiding,  but  one  penalty  attaches,  and  they  may  be  sued  jointlj'.  Where  the 
offence  in  its  nature  is  one,  the  penalty  will  be  held  to  be  one,  and  several  penal- 
ties cannot  be  imposed  upon  the  several  offenders.  The  true  inquiry  is,  under  a 
penal  statute,  can  the  single  offence  created,  be  committed  by  several  persons. 
Ingersoll  v.  Skinner,  1  Denio  540.  But  if  by  the  terms  of  the  statute  imposing  a 
penalty,  it  provides  a  several  penalty  upon  each  person  offending,  a  penalty  may 
be  recovered  against  each,  and  in  such  case,  a  joint  action  does  not  lie.  Marsh 
V.  Shute,  1  Denio  230.  The  better  test  is:  What  was  the  legislative  intent?  Al- 
though in  general,  offences  are  several,  and  each  offender  liable  to  a  several  pun- 
ishment, yet,  if  by  the  terms  of  the  statute  the  penalty  is  single,  though  several 
persons  unite  in  the  act  prohibited,  but  one  penalty  can  be  recovered;  this  is 
Kometimts  by  way  of  compensation  to  the  individual  injured  by  the  offence. 
Palmer  v.  Conley,  2  N.  Y.  182,  S.  C.  4  Denio  375. 


I'KNAL   STATUTES.  247 

witliin  tlic  statute ;  while  if  the  law  Ijc,  that  lor  m  certain  offence  a 
man  shall  lose  his  right  hand,  and  the  ollender  hath  had  his  right 
hand  before  cut  off  hi  the  wars,  he  sliall  not  h^se  liis  left  hand,  but 
the  crime  shall  rather  pass  -without  the  punishment  which  the  law 
assigned,  than  the  letter  of  the  law  shall  be  extended.^', 

A  penal  law  then,  shall  not  be  extended  by  equit}' ;  that  is, 
things  which  do  not  come  within  the  words,  shall  not  be  brought 
within  it,  by  construction.  The  law  of  England  does  not  allow  of 
constructive  offences,  or  of  arbitrary  punisliments.  No  man  in- 
curs a  penalty  unless  the  act  which  subjects  him  to  it,  is  clearly 
both  within  the  spiiit  and  the  letter  of  the  statute  imposing  such 
[jcnalty.  "  If  these  rules  are  violated,"  said  Best,  C.  J.,  in  the 
case  of  Fletcher  v.  Lord  Sondes,  h  "  the  fate  of  accused  persons 
is  decided  by  the  arbitrary  discretion  of  judges,  and  not  by  the 
express  authority  of  the  laws." 

But,  still,  the  intent  is  to  be  regarded ;  which  is  a  primary  rule, 
and  that  occasioned  it  to  bo  said,  that  "  equity  knows  no  difference 
between  penal  laws  and  others."  "^  The  question  is,  does  a  case 
come  witliin  the  meaning  of  the  words  ?  Thus,  the  enactment  that 
made  kilUng  a  master,  treason,  was  held  to  include  a  mistress,  c 

If  the  statute  1  Ed.  G,  had  been,  that  he,  that  should  steal  one 
horse,  should  be  ousted  of  his  clergy,  then  there  had  been  no  ques- 
tion at  all  if  a  man  had  stolen  more  horses  than  one,  but  that  he 
had  been  within  the  statute  ;  for  omiie  majm  continct  in  se  minus,  d 

Neither  is  it  true,  as  it  has  been  sometimes  put,  that  the  Court, 
in  the  exposition  of  penal  statutes,  are  to  narrow  the  construc- 
tion, e  "  We  are  to  look  to  the  words  in  the  first  instance,"  said 
Bullcr,  J.,  in  B.  v.  Hodnett,  /'  "and  where  they  are  plain,  we  are 
to  decide  on  them.  If  they  be  doul)tl'ul,  we  have  then  to  have 
recourse  to  the-  subject  matter." 

In  construing  penal  statutes,  we  must  not,  by  refining,  defeat 
the  obvious  intention  of  the  Legislature.  Thus,  on  the  Bribery 
Acts,  to  satisfy  the  term  "procuring,"  it  is  necessary  that  the 
vote  should  be  actually  given  :  but  as  to  "corrupting,"  that  is  not 
necessary ;  the  corruption  has  been  held  complete,  without  the 
vote  being  given.'/ 

By  another  restrictive  rule  of  construing  i)enal  statutes,  if  gen- 
eral words  follow  an  enumeration  of  particular  cases,  such  general 

a  Bacon's  Maxims,  58,  59.  6  3  Bing.  580. 

^  Hard.  208  ;  Plowd.  8G.  d  Bacon's  Maxims,  59. 

V.  Per  Bnllor,  J.  / 1  T.  K.  9G. 

;/  3  Burr.  1235. 

Note  36. — The  same  statute  may  be  regarded  as  peuai  iu  cue  part  or  aspect, 
and  demand  strict  construction,  and  in  another  part  be  remedial,  and  require  a 
liberal  interpretation.  Fish  v.  Fisher,  2  John  Cas.  89.  Smith  v.  Moffat,  IBarb. 
05.  Millend  v.  Lake,  Ontario  E.  R  Co.,  9  How.  E.  B.  233.  "W'arucr  v.  Hadner 
E.  E.  Co  ,  5  Barb.  45J[, 


2-i8  PEN.VL   STATUTES. 

words  are  licld  to  appl}'  only  to  cases  of  the  same  land  as  those 
V,  hich  are  expressly  mentioned.  By  the  14  Geo.  2,  c.  1,  persons 
\\\\o  should  steal  shee}),  or  any  other  cattle,  were  deprived  of  the 
l)enetit  of  clergy.  The  stealing  of  any  cattle,  whether  common- 
able, or  not  commonable,  seems  to  be  embraced  by  these  general 
words,  "  any  other  cattle,"  yet  they  were  looked  upon  as  too  loose 
to  create  a  capital  offence.  B}^  the  15  Geo.  2,  c.  34,  the  legisla- 
ture declared  that  it  was  doubtful  to  what  sort  of  cattle  the  former 
:ict  extended  besides  sheep,  and  enacted  and  declared  that  the 
act  was  meant  to  extend  to  any  bull,  cow,  ox,  steer,  bullock, . 
heifer,  caK  and  lamb,  as  well  as  sheep,  and  to  no  other  cattle 
whatsoever.  Until  the  Legislatnr(^  distinctly  specified  what  cattle 
were  meant  to  be  included,  the  judges  felt  that  they  could  not  ap- 
ply the  statute  to  any  other  cattle  but  sheep.  The  legislature  by 
the  last  act  says,  that  it  was  not  to  be  extended  to  horses,  pigs,  or 
goats,  although  all  these  are  cattle,  a  Yet  horses  are  cattle  within 
the  Blaek  Act,  &  and  bulls  are  not  cattle  within  3  Geo.  4,  c.  71.  c 

An  instance  of  a  statute  penal  upon  particular  persons,  being 
taken  stridi  juris,  was  before  mentioned  in  the  statute  c/ema/e/ac- 
torihns  in  loarcis,  not  extending  to  those  offending  in  forests,  d  So 
a  curate  of  an  augmented  curacy  (by  Queen  Anne's  bounty)  was 
held  not  to  be  liable  to  the  penalties  of  the  21  Hen.  8,  c.  13,  for 
non-residence,  c  "  If  we  had  the  power  of  Degislation,"  said 
Lord  Kenyon  in  that  case,  "  perhaps  we  should  thuik  it  proper  to 
extend  the  penalties  created  by  the  statute  of  Hen.  8,  to  all  bene- 
fices with  cure  of  souls ;  but  as  it  is  our  duty  to  expound,  and  not 
to  make  acts  of  parliament,  we  must  not  extend  a  penal  law  to 
other  cases  than  those  intended  by  the  legislature,  even  though  we 
think  they  come  within  the  mischief  intended  to  be  remedied.  The 
words  of  the  statute  of  Hen.  8,  are,  '  Beneficed  with  any  parsonage,' 
or  '  vicarage  ;'  but  this  is  neither  a  parsonage,  nor  a  vicarage.  [For 
wise  purposes,  augmented  curacies  are  made  perpetual  cures  and 
l)enefices,  by  a  subsequent  statute,  1  G-eo.  1,  in  order  that  such 
curates  may  be  perpetual  corporations ;  but  the  act  does  not  go  on 
to  say  that  they  shall  be  considered  as  parsonages  or  vicarages ; 
if  it  had,  the  former  lavr  would  have  extended  to  them.  These 
curates  are  still  boimd  b}'  the  canon  law  to  reside  on  then'  bene- 
fices ;  but  I  do  not  think  that  they  are  liable  to  the  penalties  of 
the  statute  of  Hen.  8,  for  non-residence." 

By  the  stat.  2  Jas.  1,  c.  22,  searchers  of  leather,  appointed  under 
that  act,  are  authorized  to  seize  leather  insvfjicienthj  dried,  in  order 
to  cany  it  before  other  ofiicers,  called  triers.  They  are  liable  to 
an  action  for  seizing  that  which  is  sufficiently  dried,  though  in  then- 
judgment  it  is  not  so,  and  though  they  arc  subject  to  a  penalty  for 
allowing  leather  which  is  insufficiently  dried.     The  act  of  parlia- 

a  3  Bing.  581.  d  PI.  Com.  124,  a. 

h  2  W.  Bl.  723  e  Jenkinsou  v.  Thomas,  4  T.  E- 

c  JScpar/eHill,  3  C.  &  P.  225. 


TENAL  STATUTES.  249 

ment  only  authorizes  the  searchers  to  seize  goods  of  a  certain 
denomination ;  the  goods  in  question  in  that  case  were  not  of  that 
description.  <i/''' 

Tumbling  is  not  an  entertaiimient  of  the  stage  disallowed  witliiii 
the  words  of  10  Geo.  '2,  c.  28.  "  Tliis  is  a  penal  act  of  parliament, 
and  Ave  canncjt,"  said  Lord  Konyon,  "  extend  it  to  entertainments^ 
tliTit  did  not  exist  when  thc^  statute  was  made,  though,  perhaps,  it 
is  desira])le  that  the  prohibitions  should  be  extended,"  etc. /> 

The  stat.  [)  Ann.  c.  10,  s.  40,  inflicts  a  penalty  on  persons  who 
wilfully  open  or  detaui  letters  after  they  have  been  delivered  at 
the  post-office.  There  are  v.'ords  at  the  end  of  the  clause  creatuig 
the  forfeiture,  which  show  that  the  legislature  intended  to  restrain 
the  operation  of  the  general  words,  "  no  j)erson,  or  persons,"  to 
those  employe'd  in  the  post-oilice  ;  and  it  was  held  accordingly,  a 

When  a  gooil  thing  and  a  void  thing,  are  i)ut  together  in  the 
same  grant,  the  common  law  makes  such  a  construction  that  the 
grant  shall  be  good  for  that  which  is  good,  and  void  for  that  which 
is  void,  f/  ]>ut  according  to  Hobart,  r;  followed  by  Wihnot,  J.,  in 
Collins  V.  Blantorn,/' where  an  instrument  is  void  in  part  by  the 
statute  law,  it  is  void  for  the  whole.  "  The  statute  law  is  like  a 
tyrant ;  where  he  comes  he  makes  all  void  ;  but  the  common  law 
is  like  a  nursing  father,  makes  only  void  that  part  where  the  fault 
is,  and  preserves  the  rtist."  Tluis  sherifts'  bonds  are  only  autho- 
rized to  be  taken  with  a  certain  condition,  and  therefore  if  they 
are  taken  with  any  other  condition,  they  are  void  i)i.  to'o,  and  can- 
not stand  good  in  part  only,  g 

But  this  rule  which  is  one  of  rigour,  does  not  apply  to  different 
and  independent  covenants  in  the  same  instrument,  which  may 
be  good  in  part,  and  bad  in  part.  Thus,  in  Mowys  v.  Leake,  It 
where  a  rector  had  granted  an  annuity  out  of  his  benefice,  which 
was  void  by  the  statute  lo  Eliz.  c.  20,  Avhicli  saj's,  "  that  all  charg- 
ings  of  benefices  with  any  person  shall  be  utterly  void,"  he  was 
yet  held  liable  upon  his  personal  covenant  to  pay  it,  contained  in 
the  same  deed,  and  Lord  Ellenborough  afterwards  said :  i  "  The 
case  of  MoAvys  and  Leake  is  founded  on  admirable  good  sense  and 
sound  law :  the  court  there  held  that  it  did  not  affect  the  personal 
covenant  to  pay  the  rent-charge,  but  only  defeated  the  security  of 
such  rent-charge  upon  the  living." 

a  Warue  v.  Yarley,  G  T.  R.  443.  c  Martiu  v.  Ford,  5  T.  R.  101. 
?>  R.  V.  Haudy,  6  T.  R.  286. 

d  Per  Iluttou,  J.  Ley's  Rep.  79.  e  Hob.  Rep.  14. 
/  2  Wils.  351. 

<;  Per  Lawrence,  J.,  in  Kerrison  and  Cole,  8  East,  231;  and   see  Morgan  and 

Others  v.  Horseman  and  Others,  3  Taunt.  241. 

/i  8  T.  R.  411.  i  Kerrison  v.  Cole,  8  East,  234. 

Note  37. — A  statute  giving  a  penaltj',  implies  a  prohibition  of  that  act  rendered 
penal,  and  an  act  committed  against  it  is  consequently  void,  and  amounts  to  no 
legal  defence.     Hallett  v.   Noviou,  14  John.  273;  Mitchell  v.  Smith,  1  Binn.  110. 
32 


250  TEXAL  STATUTES. 

And  the  court  adopted  tlie  same  construction  in  a  later  case 
upon  tlie  sliip  registry  act,  where  a  bill  of  sale  transferred  a  sliip 
by  Tray  of  mortgage,  without  reciting  the  certificate  of  registry.  « 
The  words  of  the  act  26  Geo.  3,  c.  60,  s.  17,  are,  that  "  the  bill,  or  U 
other  instrument  of  sale,  shall  be  utterly  null  and  void  to  all  in-  ^^ 
tents  and  purposes," — if  the  certificate  of  registry  be  not  truly  re-  i 
cited  therein.     It  was  held  that  the  object  of  the   act  was  suffi-  ^' 
ciently  answered  by  holding  void  so  much  of  the  instrument  as  was  ' ) 
meant  to  convey  the  projierty  m  the  ship,  "  that  part  of  it  only  ^  i 
which  operated  as  a  bill  of  sale;"  and  that  the  mortgagor  might 
be  sued  upon  his  personal  covenant  contained  in  the  same  instru-o 
ment  for  the  repayment  of  the  money  lent.     For,  to  go  further  than  '     -4 
to  hold  that  the  transfer  shall  be  void,  and  to  vacate  the  coUaterar^y^ 
covenant  for  the  payment  of  the  money  lent,  would  be  going  be- 
yond the  reason  and  object  of  the  legislature,  in  order  to  work  in- 
justice, r 
The  stat.  5  Eliz.  c.  4,  s.  41,  says,  all  indentures  of  apprenticeship    ' 
made  otherAvise  than  is  by  that  act  directed,  shall  be  "  clearly 
void  m  law  to  all  intents  and  purposes  whatsoever."     In  an  action    , 
for  harbormg  an  apprentice,  as  such,  a  it  was  contended  that  many  ^ 
f  ases  have  determined  that  the  objection  to  the  validity  of  the  in-     '^1 
dentures  for  want  of  compliance  with  the  requisites  of  the  act,  can  ,^    ^ 
only  be  taken  by  the  parties  themselves :  upon  which  Mansfield, 
C.  J.,  observed  :  "  The  words  of  the  41st  section  certamly  at  first 
startled  one.     Yet  there  have  been  many  cases  cited,  h  which  say,  ^ 
that  indentures  which  do  not  conform  to  the  act  shall  be  only  d 
^  voidable,  and  not  void.     If  the  word  voidable  were  applied  to  - 
Y  adults,  it  would  be  extreinely  strange  :  with  respect  to  infants,  if  I 
^^O  applied  to  them,  one  can  understand  it.     In  all  those  cases  the  ^  - 
A  question  arose  with  resjDect  to  the  rights  of  infant  apprentices ; 
'^^  but  there  has  been  no  cases  cited,  where  the  doctrine  that  the    ^ 
contract  is  voidable,  not  void,  is  applied  to  the  case  of  a  master ;   '-^ 
and  it  would  be  very  wonderful  if  there  were.     But  there  is  a 
I  ground,  I  think,  which  makes  it  impossible  for  the  plaintiff  to  re- 
cover in  this  case,  he  not  having  complied  with  the  provisions  of    J 
this  act,  and  contrary  to  the  express  provisions  of  the  26th  sec-    [ 
tion  he  being  neither  a  householder,  nor  above  the  age  of  twenty- 
.four;  for  besides  the  words  making  it  void  to  all  intents  and  pur-    ^ 
L"-  poses,  it  is  in  the  same  section  further  provided,  '  that  every  person   y  .  ^ 
4)  that  shall  fi'om  thenceforth  take,  or  newly  retain  an  apprentice, 
contrary  to  the  tenor  and  true  meaning  of  that  act,  shaU  forfeit  and 
'  lose  for  every  apprentice  so  by  him  taken,  the  sum  of  10/. ;'  so 
Xinaking  it  not  only  void,  but  unlawful."     Hence  it  appears,  that  if     >-^ 
r\[t  be  doubthil  whether  a  statute  declaring -an  act,  instiamient,  or    w 

a  Gye  v.  Eelton,  4  Taunt.  870. 

h  Sell.    R.  V.   St.   Nicholas  Ii^sv/ich,  1  Bott.  525.     Winchcourt  v.  Winchester, 
Hobb.  166.     Barber  v.  Dennis,  1  Salk.  68.     R.  v.  Evered,  1  Bott.  530. 


STRICT  CONSTEUCTION.  251 

contract  void,  make  it  voidal)lo  only,  another  clause  in  the  samo 
statute  imposing  a  penalty  on  sucli  act,  instrument,  or  contract,  is  , 
a  clear  test  that  it  is  ipso  facto  void. 

A  deed  by  Avhicli  an  annuity  is  granted,  if  it  be  not  registered,  ."" 
■^^•ill  be  absolutely  void  for  want  of  enrolment.  The  stat.  17  Geo.  y. 
Ij,  c.  26,  s.  1,  declared,  that  "all  deeds  whereby  annuities  are  '>j 
granted  shall  be  null  and  void  to  all  intents  and  pur])oses,  unless  ..'" 
a  proper  memorial  thereof  l)e  registered  according  to  the  method  \. 
])rescribed  by  the  act."  In  the  case  of  Crosby  v.  Aikwright, a  ./ 
Jjuller,  J.,  said  :  "  In  none  of  the  numberless  cases  Avhich  have  •  * 
arisen  upon  this  act,  has  it  ever  been  doubted  but  that  annuity  ■ 
deeds,  not  registered  confiniuable  to  the  statute,  were  void." 

Statutes  made  for  the  advancement  of  trade  and  commerce,  and    ''    , 
to  regulate  the  conduct  of  merchants,  ought  to  be  perfectly  clear  and    » 
.intelligible  to  persons  of  their  descri])tion.     By  the  use  of  amhigu-    * 
ous  clauses  m  laws  of  tliat  sort,  the  legislature  would  be  laying  a   ,* 
snare  for  the  subject ;  and  a  construction  which  conveys  such  an  ^ 
imputation  ought  never  to  be  ado23ted.     Judges,  therefore,  where      * 
clauses  are  obscure,  will  lean  against  forfeitures,  leaving  it  to  the    ' 
legislature  to  corr3ct  the  evil,  if  there  be  any.     With  this  view,  the 
sliip  registry   acts,  so  far   as  they  apply   to  defeat  titles  and  to 
create  forfeitureSj  are  to  be  constnied  strictlj^  as  penal,  and  not  lib- 
erally, as  remedial  laws,  h 

in  like  manner,  in  the  revenue  laws,  where  clauses  inflicting  pains 
\id  penalties  are  ambiguously  or  obscurely  worded,  the  interpre- 
tation is  ever  in  favor  ot'  the  subject;  "for  this  plain  reason,"  said 
Heath,  J.,  in  Hubbard  and  Johnston,  "  that  the  legislature  is  ever 
at  hand  to  explain  its  own  meaning,  and  to  express  more  clearly  \ 
what  has  been  obscurely  expressed."  '^'^ 

Whenever  a  statute  gives  a  foi-feiture  or  penalty  against  him,    ,- 
who  wrongfully  detains  or  dispossesses  another  of  his  duty  or  in-   i 
terest,  in  that  case  \\(^  that  has  the  wrong  shall  have  the  forfeiture  '• 
or  penalty,  and  shall  have  an  action  therefore  upon  the  statute,  at  % 
the  common  law  ;  and  the  king  shall  not  have  the  forfeiture  in  that  <;    ' 
case.     And  so  it  was  adjudged  in  the  exchequer,  upon  conference 
>vv'itli  other  judges,  in  an  uiformation  for  the  treble  value  for  not 
setting  out  tithes,  in  Iclington,  m  the  county  of  Cambridge,  c 

If  an  act  of  parliament  give  a  forfeiture  for  a  collateral  thing,  the  . 
king  shall  have  it ;  but  where  it  is  given  in  lieu  of  property  and      i 

a  2  T.  R.  G05.  h  Hubbard  v.  Johnston,  3  Taunt.  177. 

cCo.Litt.  259  a. 

Note  38.— Revenue  laM's  which  impose  forfeitures  for  fraud,  are  not  to  be  re- 
garded as  technically  penal,  so  as  to  call  for  strict  construction  in  favor  of  a  de- 
fendant, but  remedial,  so  as  to  effectuate  the  intent  of  the  legislature.  Cliquot's 
Champagne,  3  Wall.  115;  Taylor  v.  U.  S.,  3  How.  197;  U.  S.  v.  Probasco,  11 
Am.  L.  Reg.  419;  U.  S.  v.  Twenty-eight  Casks  of  Wine,  7  Int.  R.  Rec.  4.  Such 
laws  are  for  the  suppression  of  a  public  wrong,  and  to  effect  a  public  good. 


252  STPJCT  CONSTEUCTION. 

interest,  it  shall  go  to  the  person  injured.  But  wliere  it  is  given 
for  a  crime,  tlie  king  shall  have  the  forfeiture,  though  he  be  not 
named,  a 

The  words  "  shall  forfeit,"  vests  only  a  right  or  title  and  not  the 
fi-eehold,  in  deed,  or  in  law,  without  an  office  to  find  the  certainty 
of  the  land,  h  Where  a  statute  gives  a  forfeiture  "  of  all  inheri- 
tances," it  does  not  extend  to  an  estate  tail ;  but  where  it  is  "  of  all 
manner  of  inheritances,"  estates  tail  are  comprehended,  c 

The  stat.  8  Anne,  c.  7,  s.  17,  imposing  a  penalty  of  treble  the 
value  on  the  importation  of  foreign  goods  proliibited  to  be  im- 
ported into  this  countrj^,  extends  to  all  such  goods  as  have  been, 
or  may  be,  prohibited  subsequently  to  that  statute  ;  as  much  as  if 
they  had  been  prohibited  at  the  time  of  making  that  statute. (^ 

If  the  penalty  given  by  a  statute  is  to  be  recovered  in  a  court  of 
record,  this  can  only  be  recovered  m  one  of  the  superior  courts  at 
Westminster  ;  for  being  a  penal  law  it  ought  to  be  construed  strictly, 
and  these  are  the  courts  m  which  tlie  king's  attorney  general  is 
supposed  to  attend,  e 

It  was  held  in  the  case  of  Partridge  v.  Naylor,  that  if  an  action 
upon  a  statute  giving  a  penalty,  be  brought  against  several  de- 
fendants, only  one  'penalty  can  be  recovered.  But  where  a  con- 
viction of  two  persons  had  taken  place  on  a  statute  giving  a  for- 
feiture for  deer  stealing,  and  judgment  was  given  that  each  de- 
fendant should  pay  the  forfeiture  ;  the  conviction  being  removed,  it 
was  objected  that  there  ought  to  be  but  one  307.  forfeited,  and  the 
last  mentioned  case  was  cited;  sed  non  allocatur,  for  the  words  of 
the  act  are  that  they  shall  "respectively  forfeit  307."  And  this 
penalty  is  not  m  the  nature  of  a  satisfaction  to  the  party  grieved, 
but  a  punishment  of  the  otfender ;  and  crimes  are  several,  though 
debts  are  joint :  "  which,"  said  Powell,  J.,  "  distinguishes  thisfrom 
the  case  of  Partridge  v.  Naylor."  /'  The  rule  seems  to  be  laid 
down  with  great  clearness  and  good  sense  in  the  case  of  R.  v.  Clark, 
that  where  an  offence  created  or  made  fi-aud  by  statute,  is  in  its 
nature  single,  one  single  penalty  only  can  be  recovered,  though 
several  join  in  committing  it ;  but  if  the  ofience  be  in  its  nature 
several,  each  offender  is  separately  liable  to  the  penalty,  rj 

On  the  question  whether  two  penalties  can  be  incurred  in  the 
same  day,  the  determmations  have  in  like  manner  properly  de- 
pended on  the  nature  of  the  ofience.  The  cases  of  Marriott  v. 
Show  It  and  P.  v.  Mathews,  i  in  which  it  was  held  that  only  one 

a  Vin.  Abr.  Tit.  Statute:  Forfeiture.        h  PI.  Com.  48C. 
c  Jenk.  287,  pi.  21;  Hob.  354.  d  Atty.  Gen.  v.  Saggers,  1  Price  182 

e  E.  V.  Hymon,  7  T.  E.  536.  Walwyn  v.  Smith,  1  Salk.  178;  Cro.  Eliz.  48'; 
Noy.  62. 

f  The  Queen  v.  King  and  Another,  1  Salk.  182. 
■<7Cowp.610.  A  Com.  274. 

?•  10  Mod.  20,  S.  P.  Hardman  k  Whitacre,  Bull.  N.  P.  189.  E.  v.  Bleasdale,  4 
T.  R.  809. 


STEICT  CONSTRUCTION.  253 

penalty  could  be  forfeited  iji  one  day,  -were  upon  the  5  Ann.  c.  14, 
K.  4,  for  kcf})iiiff  or  using'  gn'cylionnds  for  the  destnictiou  of  giiiiie, 
which  ■Nvus  only  a  continuation  of  the-  sanu;  act.  So  in  the  case  oi 
Cripps  V.  Dunlen,  on  the  29  Car.  '2,  c.  7,  for  exercising  a  trade  on 
Huntlay,  Lord  Mansfield  said  :  "  There  can  be  but  one  entire 
oilence  on  one  and  the  same  day."  That  case  was  one  continued 
exercising  of  the  trade,  one  Sunday.  But  in  tlie  case  of  Brooke 
i/ui  /rt//<  V.  Milliken,  on  the  12  Geo.  2,  c.  Ij(5,  for  selling  books  origin- 
ally written  and  ])ublish('d  here,  and  afterwards  re])rinted  in 
another  country  and  ini])()rted  into  this,  the  court  held  that  where 
there  had  bemi  two  distinct  acts  of  sale  on  the  same  da}',  this  con- 
stituted two  different  olTences,  for  which  two  penalties  Avere  re- 
coverable, a 

Immediately  on  tiling  an  information,  the  right  to  the  penalty 
vests  in  the  informer,  and  therefore  though  the  King  may  pardon 
the  otfence,  so  as  to  discharge  his  own  share,  he  cannot  deprive 
the  informer  of  his.  h 

AVhere  a  statute  (as  Westm.  2,  cap.  47,)  says  offenders  shall  be 
punished  for  the  first  trespass,  in  a  given  maimer,  (there,  by  burn- 
ing their  nets,)  this  ought  to  be  by  indictment  at  the  suit  of  the 
King,  and  the  punishment  cannot  be  inflicted  upon  the  delinquent, 
before,  upon  due  conviction  secundum  legem  et  consuctudinem  An- 
(jliic,  judgment  is  given.  And  where  there  are  degrees  of  punish- 
nr^nt  inflicted  in  an  increasing  ratio,  for  the  first,  second,  and  third 
olfonees,  thei'e  must  be  several  convictions  and  judgments  given 
u[)on  legal  ])roceeding  for  each  oilence,  and  an  offender  cannot  be 
convicted  of  the  third  before  he  is  convicted  of  the  second,  or  of 
the  S3Cond  before  he  is  convicted  of  the  first.  For  though  "  ex 
t'requenti  delicto  augetur  poena,'"  yet  quod  non  apparet,  non  est,  in 
law;  et  non  apparet  judicialiter,  ante  judicium,  c 

It  has  been  held  that  statutes  that  give  costs  are  to  be  taken 
strictly,  as  being  a  kind  of  penalt}'.  d.  And  the  authority  of  Cone 
and  Bowles  was  recognized  in  another  case  by  Lord  Hardwicke, 
C.  J.,  who  stated  it  to  be  a  settled  rule  that  statutes  which  give 
costs  are  to  be  construed  strictly,  e 

Costs  are  only  due  by  act  of  Parliament,  none  being  recover- 
able at  common  law  ;  and  the  statute  of  Gloucester,  which  gives 
them,  is  only  applicable  to  those  cases  where  damages  could  be 
recovered  before  it  passed.  /"  Thus  in  sundry  actions  ;  in  an  ac- 
tion of  waste  against  tenant  for  life  or  years, — in  quare  impedit 
(which  was  considered  as  a  mere  matter  of  spiritual  concern,) — 
and  in  an  action  of  debt  for  not  setting  out  tithes  (which  could 
not  be  recovered  in  the  temporal  Courts  before  the  reign  of  Ed. 
(■),)  the  party  recovers  no  costs,  because  he  had  no  right  of  action 

a  3  T.  K.  r.OO.  h  Grosset  v.  Ogilvio  (in  error,)  5  Bro.  P.  C.  527. 

<■  2  lust.  4(18.  478.  d  Cone  and  Bowles,  1  Sivlk.  205. 

p  II.  V.  Inhabitants  of  Glastonrv,  Hep.  Temp.  Hard.  357. 
/rilford's  case,  10  Rep.  116,  b.' 


251  STRICT  CONSTEUCTION. 

before  the  statute  of  Gloucester.  Lord  Coke  indeed,  in  his  second 
last  it  ate,  lays  down  a  rule  apparently  different  fiom  that  m  Pil- 
ford's  case ;  for  he  says,  "  this  clause  (in  the  statute  of  Gloucester) 
doth  extend  to  give  costs  where  damages  are  given  to  any  defend- 
ant or  plaintiff  by  any  statute  made  nfler  this  Parliament."  In 
^'itham  and  Hill,  Lord  C.  J.  Willesr/  was  stroiigly  inclined  to 
overrule  Pilford's  case ;  but  would  not,  though  he  thought  it  a  A'ery 
extraordinary  one,  because  he  considered  the  case  before  him  dis- 
tinguishable from  it ;  and  the  constant  endeavor  has  been,  without 
contradicting  that  case,  to  take  other  cases  out  of  the  rule.  The 
decision  in  subsequent  cases  has  been  said  to  depend  entirely,  upon 
whether  the  new  statute  created  the  damages.  Wherever  a  party 
has  sustained  damage,  and  a  new  act  gives  another  remedy,  such 
a  party  may  recover  costs  as  well  as  damages.  This  is  laid  down 
by  Lord  Kenyon,  as  the  correct  rule,  in  Creswell  and  Hoghton. /'^ 
There  it  was  said,  "  where  an  act  of  Parliament  imposes  a  duty, 
and  any  person  is  prejudiced  by  its  non-performance,  the  party 
injured  may  recover  damages  and  his  costs."  In  the  case  of  pen- 
alties, a  distinction  was  taken  c  between  those  cases  where  the 
penalty  is  given  to  the  party  grieved,  and  those  where  it  is  given 
to  a  common  informer.  The  Court  said  the  instant  the  tiling  was 
done  which  occasioned  the  penalty,  it  was  a  debt  at  common  law ; 
and  the  action  upon  the  statute  for  the  penalty  is  similar  to  that 
upon  a  bond  to  recover  a  debt  already  clue.  So,  it  was  established 
by  a  variety  of  cases,  that  where  an  action  is  given  to  the  party 
grieved,  (as  in  two  cases  against  the  huncbed,)  he  is  entitled  to 
costs  if  he  succeed,  though  he  had  no  remedy  before  the  statute 
of  Gloucester,  d  except  as  by  construction,  he  gets  a  debt  at  com- 
iiion  laio,  and  so  damages.  Being  a  duty  to  the  party  vested  be- 
fore action  brought,  he  shall  have  costs;  but  in  tarn  ejuam  or  other 
popular  actions  where  the  duty  is  not  vested  till  the  suit  brought, 
and  not  a  debt  vested  before,  he  shall  not  have  costs,  e  In  the 
College  of  Physicians  v.  Harrison,  Lord  Tenterden  said,  "Where 
a  right  is  vested  in  a  particular  person  or  corporation,  the  with- 
holding of  that  right,  and  thereby  compelling  the  party  to  sue  for 
it,  is  an  injury  for  Avhicli  damages  may  be  recovered :  and  if  dam- 
ages, then  costs  will  follow."/'  In  that  case,  the  defendant  having 
succeeded,  was  consecpiently  entitled  to  costs  under  the  stat.  4  Jac. 
1,  cap.  3.  Thus,  though  the  distinction  be  fme  in  the  case  under 
the  subsequent  acts,  is  the  doctrine  supported  and  the  authorities 
reconciled. 

A  justice  of  the  peace,  who  has  prosecuted  a  gaoler  to  convic- 
tion, for  suffering  a  prisoner  to  escape,  conmiitted  by  him  on  a 

a  2  Wils.91.  hGT.  E.  355. 

cin  Ward  aud  Snoll,  1  H.  IJ!.  10. 

(i  Grantham   v.  Theale,    3  Burr.  1723.     Jackson  v.   Coleswortli,    1    T.    E.    71. 
Woodgate  and  Knatchbull,  2  T.  E.  25i.     Tyte  v.  Glowdeu,  7  T.  E.  268. 
ePer  Holt,  C.  J.,  Skinner,  303.  /9  B.  &.  C.  524. 


STRICT  CONSTRUCTION.  255 

cliargo  of  felon}',  is  not  entitled  to  the  costs  of  the  conviction  un- 
dei'  5  W.  and  M.  c.  11,  s.  I},  as  beinf.^  "a  public  ofKcer  prosecuting 
for  the  bonelit  of  the  public." f/.  Per  BuUer,  J.,  "The  Court  has 
always  put  a  strict  construction  on  this  act." 

The  stat.  7  Geo.  4,  c.  7-1,  s.  23,  which  provides  for  the  allowance 
of  costs  to  prosecutors  and  witnesses  in  certain  cases  of  misde- 
meanor, does  not  apply  where  the  indictment  has  been  removed 
into  the  King's  Bench  by  certiorari,  h 

Wherever  a  statute  imposes  terms,  and  prescribes  a  thing  to  be 
done  within  a  certain  time,  the  lapse  of  CAen  a  day  is  fatal,  because 
no  court  can  admit  of  any  terms,  Ijut  such  as  directly  and  precisely 
satisfy  the  law.  c 

In  the  construction  of  a  penal  statute,  "  near  "  is  riot  equivalent 
to  "  next ;"  as  where  the  expression  "  next  market  town  "  is  used.r/ 

Acts  of  Parliament  which  take  away  the  trial  by  jury,  or  abridge 
the  hbert}'  of  the  subject,  ought  to  receive  the  strictest  construc- 
tion, c 

It  is  a  well  settled  rule  of  law,  that  every  charge  ui)on  the  sub- 
ject must  be  imposed  I)}'  clear  and  unambiguous  language.  Acts 
of  Parliament  which  impose  a  duty  upon  the  public,  will  be  ciitic- 
ally  construed  v.ith  reference  to  the  particular  language  in  which 
they  are  expressed.  When  there  is  any  ambiguity  found,  the  Con- 
struction must  be  in  favoiu"  of  the  public  ;  because  it  is  a  general 
ruU;,  that  whore  the  public  are  to  be  charged  with  a  burden,  the 
intention  of  the  Legislature  tt)  impose  that  burden,  must  be  ex- 
})licitly  and  distmctly  shown. '''  Hence  a  gift  of  an  estate  upon 
conditions,  was  held  not  "a  sale"  within  the  meaning  of  the  48 
Geo.  3,  c.  149,  and  that  the  conveyance  was  not  subject  to  the  ad 
cdloreiii  stamp  duty./" 

^  As  to  the  Stamp  Acts  m  general,  Lord  Tenterden  observed  in 
Tomkins  v.  Asliby  :  "  Acts  of  Parliament  imposing  duties  are  so 
to  be  construed,  as  not  to  make  any  instrument  liable  to  them,  un- 
less manifestly  within  the  intention  of  the  Legislature."  (j  And 
si>e  the  rule  laid  down  by  Lord  Ellenborough  m  Warrington  v. 
Turbert.  // 

So,  in  the  cases  of  tolls  for  repamng  turnpike  roads,  where  the 
toll  was  imposed  on  "  the  horses  drawing  a  caniage,"  but  persons 

a  R.  V.  Shiiipness,  2  T.  K.  47.  c  5  Bio-  P.  C.  438. 

h  E.  V.  Richards  and  Others,  8  B.  &  C.  420. 

d  1  W.  Bl.  20.  e  Looker  v.  Halcome,  4  Biug.  184. 

/■  Deun  dem.     Manifold  v.  Diamoud,  4  B.  &.  C.  248. 

;/  6  B.  &  C.  541.  h  8  East,  242. 

I^oTE  39. — Upon  sound  principles  of  construction,  a  reference  to  a  ^ey-mused  in 
a  statute  must  be  in  its  direct  and  primary  sense,  as  exj)ressly  defined,  and  not  in 
an  assimilated  interpretation,  and  this  is  more  especially  so  when  the  express 
meaning  will  accomplish  all  that  was  designed  by  the  framcrs  of  the  law.  Cru- 
gerv.  Cruger,  5  Barb.  267. 


256  STRICT   CONSTRUCTION. 

repassing  ^^  itli  the  same,  duriiig  the  same  day,  were  to  be  toll 
free  ;  a  second  toll  is  payable  in  respect  of  a  different  carriage 
passing  the  same  day  with  the  same  horses;  ft  for  the  word  "  car- 
riage" is  introduced  to  limit  the  exemption,  and  you  must  other- 
wise, instead  of  giving  effect  to  every  word  in  an  act  of  parlia- 
ment, strike  it  out  of  the  clause.  But  where  the  toll  is  imposed 
on  the  "  carriage  drawn  by  so  many  horses,"  it  makes  no  difference 
in  the  exemption,  whether  drawn  by  the  same  or  different  horses,  h 
And  where  the  words  of  an  exemption  clause  were,  that  "  eyerj 
person  having  paid  the  said  tolls,  shall  pass  and  repass  with  the 
same  horses,  cattle,  beasts,  and  carriages,  toll  free,"  etc.,  the  court 
held  that  the  same  stage  coach  repassing  with  the  same  coach- 
man, but  with  different  horses  and  passengers,  was  not  chargeable 
with  the  second  toll.  Bayle}^,  J.,  said,  "As  a  separate  and  distinct 
duty  is  previously  imposed  upon  horses,  upon  cattle,  upon  calves, 
hogs,  sheep,  or  lambs,  which  are  properly  denominated  beasts,  I 
think,  reddendo  singula  singulis,  that  the  exemption  applies  to  every 
separate  thing  on  which  the  toll  was  previously  imposed.  The  fair 
construction  of  the  clause  is,  that  the  word  '  and'  is  not  to  be 
taken  conjunctively,  but  disjunctively  or  distributively,  and  then 
the  consequence  will  be,  that  if  you  return  with  the  same  horses, 
drawing  the  same  carriage,  you  are  to  pay  no  toll ;  if  you  return 
with  the  same  horses,  mares,  mules,  or  asses,  laden  or  unladen, 
you  are  to  pay  no  toll,  &c. ;  and  if  you  return  with  the  same  car- 
riage, you  are  to  pay  no  toll."  r 

In  an  action  for  dock  dues,  Lord  Ellenl)orough  said,  "  If  the 
words  will  fairly  admit  of  different  meanings,  it  will  be  right  to 
adopt  that  which  is  more  favorable  to  the  interest  of  the  public, 
and  against  that  of  the  company,  because  the  company,  in  bar- 
gaining with  the  public,  ought  to  take  care  to  express  distinctly 
what  payments  they  are  to  receive,  and  because  the  public  ought 
not  to  be  charged,  unless  it  be  clear  that  it  was  so  intended."  d 

In  the  Dock  Company  at  Kingston  upon  Hull  v.  Browne,  e 
Lord  Tenterden  said,  "  These  rates  are  a  tax  upon  the  subject, 
and  it  is  a  general  rule  that  a  tax  shall  not  be  considered  to  be  im- 
posed without  a  plain  declaration  of  the  intent  of  the  legislature 
to  imjiose  it." 

In  Parker  v.  The  Great  Western  Raihvay  Company,/  Tindal, 
C.  J.,  said:  "Acts  passed  conferring  great  privileges  upon  com- 
panies, for  which  they  profess  to  give  the  public  certain  advan- 
tages in  return,  should  be  construed  strictly  against  the  parties 
obtaining  them,  but  Hberally  in  favor  of  the  puljlic." 

a  LoariufT  v.  Stone,  2  B.  &  C.  515.         c  Waterhonse  v.  Keau,  4  B.  &  C.  200. 
h  Williams  v.  Sangar,  10  East,  GG;  and  Gray  v.  Shilling,  2  B.  &  B.  30. 
d  Giklwit  V.  Gladstone,  11  East,  675. 

e  2  B.  &  Ad.  58.     And  see  1  B.  &  C.  424;  3  B.  &  A.  141;  G  Scott,  N.  E.  823;  2 
M.  &G.  175. 
/L.  J.  1844,  C.  P.  105. 


.STRICT   CONSTRUCTION.  2;!>7 

Where,  therefore,  an  act  coiituiued  a  chiuse  authorizing  a  rail- 
way company,  a  to  demand  a  rate  not  exceeding  four-pence  per 
ton  per  mile  on  all  coals  carried  along  the  railway — and  a  sub.se- 
(luent  clause;,  directed  that  for  all  c(nils  shipped  for  exportation,  a 
rate  not  exceeding  one  half-penny  per  ton  per  mile  should  Ije 
charged,  it  was  held  that  the  second  clause  was  to  be  read  as  an 
(!Xce[)tion  ingrafted  u))()n  the  lirst ;  and  also  that  coals  shipped  for 
Lontlon,  were  coals  shipped  for  exportation. 

A  power  derogatory  to  private  property,  uuist  be  construed 
strictly,  and  not  enlarged  by  intendment,  b  '" 

Private  acts  of  parliament,  confening  new  and  extraordinaiy 
powers  of  a  special  nature  upon  particular  persons,  affecting  the 
l)roperty  of  individuals,  or  giving  exemption  from  a  general  bur- 
den attaching  by  law  upon  all  parties,  should  receive  a  strict  in- 
terpretation, c  Where  particular  ])owers  are  granted  to  a  coni- 
\y.niy,  if  they  enter  upon  any  man's  land,  they  must  clearly  shew 
their  authority  ;  antl  if  the  words  of  the  statute  on  which  they  rely 
are  ambiguous,  every  presumption  is  to  be  made  against  the  com- 
pany, and  in  favor  of  private  property,  d 

Where  a  local  act  empowered  trustees  to  take  and  use  lands  for 
the  purpose  of  making  a  road,  making  or  tendering  satisfaction  to 
the  owners  or  proprietors  of  ])rivate  lands,  a  court  of  law  would 
not  confine  the  meaning  of  these  words  to  the  owners  of  the 
inheritance  only,  but  considered  them  to  extend  to  "  all  persons 
Iiaving  any  estate  or  interest  in  the  land."(^. 

The  70th  and  71st  sections  of  the  London  and  Southampton 
railway  act,  provide  for  the  crossing  by  the  railway,  of  roads  not 
being  turnpike  roads.  By  the  72d  section,  it  is  enacted  that  in 
all  cases  where  the  railway  shall  cross  any  turnpike  road,  such 
turnpike  road  shall  be  raised  or  sunk,  b}-  and  at  the  expense  of  the 
company  ;  the  court  of  exchequer  determined  that  a  road  on  which 
toll-gates  were  by  law  erected,  and  tolls  taken  thereat,  was  a  turn- 
pike road  witliin  the  meaning  of  the  72d  section.  /" 

A  railway  act  provided  that  it  should  not  be  lawful  for  the  rail- 
way company  to  make  or  establish  any jj^Wic  station,  yard,  wharfs, 

a  Barrett  v.  The  Stockton  autl  Dixrlingtou  R.  C,  2  M.  &  G.  13i:  in  error,  3  M. 
it  G.  950. 
b  Lom,  -438. 

c  Rex  V.  Crokcr,  Cowp.  26;  4  Jlyluc  A-  C.  11 G. 
<l  Scales  and  Pickerin-j;,  4  Binf,'bani,  450;  2  Chit.  GIO;  2  Chit.  058. 
e  Li.ster  v.  Lobley,  6  Nev.  &  M.  340. 
/Railway  Co.,  1  Railway  Cases,  053. 

NoTK  40.— Every  statute  derogatory  of  the  rights  of  iiroperty,  or  that  takes  away 
tlie  rights  of  a  citizen,  is  to  be  strictly  construed.  Van  Home  v.  Dorrance,  2 
Dull.  316.  So  also  a  statute  in  derogation  of  the  common  law.  Brown  v.  Barrv. 
3  Dall.  367. 

I^  a  common  law  term  be  used  in  a  statute,  without  defining  it,  it  is  to  be  under- 
stood in  the  sense  of  the  English  common  law.     McCool  v.  Smith,  1  Blatch.  459 


258  STRICT  CONSTEUCTION. 

&c.,  etc.,  ii})on  the  estate  of  G.  without  liis  consent.  On  demurrer, 
it  was  hekl  that  the  word  "  pubhc"  did  not  necessarily  ovenide 
the  whole  sentences ;  and  that  if  it  did,  then  that,  from  the  sub- 
sequent chmses,  every  convenience  connected  with  the  railway, 
must  be  considered  as  for  the  pubhc  use.  (t 

Again  it  was  held,  that  where  parties  under  an  act  of  parliament 
of  a  private  nature  seek  to  burden  the  property  of  otliers  by  sub- 
jecting it  to  a  compulsory  power,  they  must  show  unambiguous 
words  in  the  statute,  b  In  the  Stourbridge  Canal  Company  v. 
Wheeler,  c  Lord  Tenterden  said  :  "  The  canal  having  been  made 
under  the  in-ovisions  of  an  act  of  parHament,  the  rights  of  the 
company  are  derived  entirely  from  that  act.  This,  like  many  other 
cases,  is  a  bargain  between  a  company  of  adventurers  and  the  pub- 
lic, the  terms  of  ^^■hich  are  expressed  in  the  statute  ;  and  the  rule 
of  construction  in  all  such  cases  is  now  fully  understood  to  be 
this  : — that  any  ambiguity  in  the  temis  of  the  contract,  must 
operate  against  the  adventurers  and  in  favor  of  the  public."  "The 
powers,"  says  Lord  Cottenham  in  the  cases  before  cited,  of  the 
Manchester  and  Leeds  Railway  Company,  "  given  to  these  com- 
panies, are  so  large,  and  frequently  so  injurious  to  the  interests  of 
individuals,  that  I  think  it  is  the  duty  of  every  court,  to  keep  them 
most  strictl}'  within  their  powers ;  and  if  there  be  any  reasonable 
doubt  as  to  the  extent  of  their  poAvers,  they  must  go  elsewhere  to 
get  enlarged  powers."  d 

Ip.  Lee  V.  Milner,  Alderson,  B.,  said  :  "  The  stipulations  con- 
tained in  acts  of  this  sort  are  m  the  nature  of  conditions,  and  the 
legislature  confers  those  privileges  on  such  companies  on  the  con- 
dition that  they  shall  obey  the  different  enactments  contained  in 
the  difi'erent  acts  with  reference  to  them."  e 

Piivate  acts  are  to  be  regarded  and  constraed  as  parliamentary 
contracts.  In  Blakemore  v.  The  Glamorganshire  Canal  Company, 
(the  leading  case  upon  this  subject,)  Lord  Eldon  said,/"  "  "When  I 
look  upon  these  acts  of  parliament  I  regard  them  all  in  the  light 
of  contracts  made  by  the  legislature  on  behah  of  every  person 
interested  in  anything  to  L)e  done  under  them.  And  I  have  no 
hesitation  in  asserting  that,  unless  that  principle  beapphed  incon- 
straing  statutes  of  that  description,  they  Ijecome  instruments  of 
greater  oppression  than  anythmg  in  the  whole  system  of  admin- 
istration under  our  constitution.     Such  acts  of  parliament   have 

a  Gordon  v.  The  Chelteuhapi,  &c..  Railway  Co.,  5  Beav.  229. 

b  Webb  V.  The  Manchester  and  Leeds  Railway  Co.,  4  Mylne  &  C.  IIG;  1  Rail- 
way Ca.s.  .576. 

c  2  B.  &  A.  792. 

d  Webb  V.  The  Manchester  and  Leeds  Railway  Co.,  1  Railway  Cas.  57G.  And 
see  Lord  Cotteuham's  judgment  in  Kemp  v.  The  Brighton  Railway  Co.,  and  his 
ob.servations  in  Bell  v.  The  Hull  and  Selby  Railway  Co.,  1  Railway  Cas.  495,  G37. 

e  Lee  V.  Milner  2  Y.  &,  E.  618.  Pickford  v.  Grand  Junction  Railway  Co.,  10 
M.  &  W.  400. 

/  1  Myl.  ctR.  162. 


STRICT   CONSTHUCTION.  259 

now  become  extremely  inimerons,  and  from  their  number  and 
operation,  they  so  nuieli  atiect  individuals,  that  I  apprehend  those 
who  coiiu!  for  them  to  parliament,  do,  in  etl'ect,  undertake  that 
they  shall  do  and  submit  to,  whatever  the  legislature  empowers, 
and  compels  them  to  do,  and  that  they  shall  do  nothing  else." 

In  a  case  between  the  same  parties  in  the  Exchequer  Parke,  B., 
said,  "The  deliberate  ophiions  of  L(n-d  Eldon,  Lord  Lyndhurst, 
and  Lord  Wynford,  have  established  that  these  acts  of  parliament 
constitute  a  contract  or  bargain  betAveen  the  public  and  the  com- 
pany."(t 

The  principle  so  stated,  Avas  acted  upon  in  R.  v.  Cumberworth 
by  Lorn  Tenterden  and  Patteson,  J.  h  And  in  R.  v.  Edge  Lane, 
Lord  Denman  said,  "  The  remarks  of  Lord  Eldon,  considering  his 
high  authority  and  undoubted  caution,  have  great  weight.  We 
also  think,  that  wdiere  powers  are  entrusted  by  the  legislature  ior 
an  avowed  and  precise  object,  the  pursuit  and  performance  of  that 
object  should  be  rigidly  Avatched."  c 

All  act  of  parliament  brought  in  on  the  petition  of  the  corpor- 
ation of  London,  is  to  be  considered  as  a  contract  between  the 
respective  parties,  notwithstanding  it  is  (as  many  other  acts  of  the 
same  kind  are)  declared  to  l)e  a  public  act."^/  "Whether  an  act 
is  public  or  private,"  said  Wigram,  C,  in  the  late  case  of  Daw^son 
V.  Paver, e  "does  not  depend  upon  any  technical  considerations, 
(such  as  having  the  clause  that  the  act  shall  be  deemed  a  pubHc 
act,)  but  upon  the  nature  and  substance  of  the  case."     And  see  /■ 

the  same  case  as  to  mere  general  Avords  in  an  act  of  this  kind, 
binding  the  rights  of  strangers. 

A  statute  Avliich  gives  a  new  remedy,  ought  not,  it  is  laid  doAvn, 
(but  rather  questionably,  Avhilst  expressed  in  such  general  terms,) 
to  receive  a  liberal  construction.  What  is  doubtless  meant,  is  a 
ncAV  remedy — by  summary  proceedings,  or  other  deviations  from 
our  ancient  constitution.  /'  / 

A  statute  [creating  a  ncAV  jurisdiction,  ought  to  be  constnied 
strictly,  g  And  the  jurisdiction  of  the  superior  courts  is  not  to 
be  ousted  but  by  express  Avords  or  necessary  implication,  Tin- 
dal,  C.  J.,  in  deliA^cring  liis  judgment  in  Crisp  y.  Banbury,  A  Avhere 
tlie  AVords  Avere  "that  the  matter  shall  be  referred  to  the  arbitra- 
tion of,"  etc. ;  fully  recognises  this  proposition. 

There  are  several  instances  in  Avliich  statutes  giving  a  summary 
remedy  before  justices  have  been  held  not  to  exclude  the  right  of 
action,  but  to  be  cumulative,  i  Yet  AA'here  an  act  created  penal- 
ties of  50/.  and  of  10/.,  and  enacted,  that  the  former  should  be 
sued  for  in  any  of  the  courts  at  Westminster,    and  provided  that 

a  1  Cr.,  M.  &  K.  Ul.  6  3  B.  &  Ad.  108. 

c  4  A.  &.  E.  723.  d  Priclaard  v.  Hej-\voorl,  472. 

e  5  Hare,  434.  f  Pool  v.  Neal,  2  Sid.  G3. 

g  10  Rep.  75  ;  Stra.  2u8.  'h  8  Biugh.  394. 

j  Holt  N.  P.  C.  147,  3E.  &  G.  1273. 


260  EXCEPTIONS  TO   STKICT  CONSTRUCTION. 

it  should  and  might  bo  lawful  for  justices  of  the  peace,  &c.,  to  hear 
aud  deteriniue  the  latter,  with  a  power  to  them  to  mitigate  the 
penalties ;  it  was  held,  that  such  proviso  (clearly  inserted  for  the 
beneht  of  the  prosecuted)  ousted  the  jurisdiction  of  the  superior 
courts,  as  to  the  lOu  penaltj.a  In  Timms  v.  Wilhams,  4  Q.  B. 
R.  4:'22,  Lord  Dennian  said,  "As  in  the  case  of  saving  banks,  so 
here  (in  the  London  Loan  Society,)  as  it  appears  to  me,  the  leg- 
islature has  thought  it  useful  to  withhold  the  power  of  instituting 
expensive  suits  in  the  supreme  courts,  and  to  aj)point  a  domestic 
forum  to  settle  those  small  disputes  which  a  society  of  this  kind 
IS  likely  to  be  engaged  in." 

It  is  a  general  rule  in  the  interpretation  of  acts  of  parliament, 
that  an  enactment,  the  effect  of  which  is  to  cut  down,  abridge,  or 
restrain,  any  written  instrument,  shall  have  a  limited  construction. 
The  enactment  framed  for  such  a  purpose  should  be  positive,  and 
the  words  so  clear  and  express,  as  to  leave  no  doubt  of  the  inten- 
tion of  the  legislature,  b  The  cases  of  Morris  v,  Mellor,  and 
Bennett  v.  Daniel,  as  to  the  defeazance  to  a  warrant  of  attor- 
ney, have  been  already  noticed  pp.  601,  G02. 

Statutes  against  frauds  are  a  satisfactory  exception  to  the  rule, 
that  penal  statutes  are  to  be  taken  strictly.  There  is  no  contra- 
diction, except  in  terms,  in  holding,  that  where  the  offence  is  to  be 
punished  by  setting  aside  a  fraudulent  transaction,  or  an  instru- 
ment improperly  obtained,  the  fullest  effect  shall  be  given  to  the 
provision  framed  to  suppress  the  mischief, — whilst,  where  the  of- 
fender is  in  danger  of  life  or  liberty,  he  must  be  brought  strictly 
within  the  letter  of  the  law.  Statutes,  therefore,  against  frauds, 
are  always  liberally  and  beneficially  expounded.  "  Chancery  will 
aid  remedial  laws,"  said  Lord  Keeper  Wright,  c  though  they  are 
called  penal ;  not  by  makuig  them  more  penal,  but  by  letting  them 
have  their  course."  The  statute  of  Marlbridge  is  a  penal  law,  but 
yet,  because  it  is  of  a  beneficial  nature,  and  for  the  public  good 
comprehensively  considered, — though  the  word  m  the  act  be 
"/aci'anf,"  it  is  extended  to  waste  omittendo, — though  the  former 
term  literally  imports  active  waste.o? 

Though  it  is  said,  as  has  been  lately  shown,  that  where  acts  of 
parliament  making  a  thing  void,  "  it  shall  be  void  to  all  intents, 
and  have  a  very  violent  relation  ;  "  c  and  though  the  stat.  of  13 
Eliz.  c.  10,  makes  void  certain  leases  by  bishops  "  to  all  intents 
and  purposes,"  3'et  such  a  lease  is  not  void  against  the  lessor  him- 
self. For,  such  rent  reserved  shall  be  good  by  the  way  of  con- 
tract between  the  lessor  and  lessee,  but  is  not  incident  to  the  re- 
version, and  the  lease  is  voidable  by  the  successor. 

a  Gates  v.  Kniglit,  3  T.  R.  442  ;  4  T.  E.  100  ;  6  T.  E.  243. 

b  Morris  v.  Mellor,  G  B.  &  C.  446  ;  Bennett  v.  Daniel,  10  B.  &  C  504. 

c  Cb.  Prac.  215. 

d  10  Mod.  282. 

e  2  Jo.  19,  citing  3  Hen.  7,  15  ;  d  al  Vin.  Abr.  tit.  Stat.  139. 


EXCEPTIONS  TO  STRICT  CONSTRUCTION  261 

It  was  said  by  Horton,  as  early  as  11  Hen.  4,  tiat  "  a  statute* 
penal,  as  the  statute  of  provisions,  shall  be  taken  tifriHi  jnri.s ; 
but  a  statute  made  for  common  remedy  for  general  mischief,  maj 
be  taken  by  equity."  a  Thus  the  Kiot  Act  and  the  Black  Acts 
hifdily  penal  as  are  their  provisions  gcaierally,  are  treated  as  re- 
medial acts  in  proceedings  taken  against  the  hundred. 

Conformal)ly  to  this  doctrine,  it  is  l)y  no  means  imusual,  in  con- 
struing a  semi-remedial  statute;  (acting  upon  the  offence  and  avoid- 
in"-  the  transaction,;  to  extend  the  enacting  Avcnds  beyond  their 
natural  import  and  effect,  in  order  to  include  other  cases  Avitliin 
the  same  mischief,  and  also  within  tlu;  apparent  intention  of  the 
legislature.  Thus,  it  was  held,  that  the  recitals  hi  the  disabling 
statute,  13  Eliz.  c.  10,  do  not  limit  the  force  of  the  subsequent 
enactment  to  cases  in  which  the  mischief  by  the  alienation  is 
done  to  the  personal  interests  of  the  successor  of  the  alienor ;  for 
it  is  evident  from  the  enactment,  that  the  legislature  intended  to 
apply  the  prohibition  to  the  case  of  persons  who  were  seised 
either  as  mere  trustees,  or  in  a  great  measure  as  trustees,  and 
among  other  persons,  to  the  master  or  guardian  of  an  hospital,  h 
Indeed,  it  is  largely  held,  that  in  the  case  of  a  remedial  statute, 
"  everything  is  to  be  done  in  advancement  of  the  remedy  that  can 
be  given,  consistently  with  any  construction  that  can  be  put  upon 

it."  c 

But  these  last-mentioned  terms  are  too  general  to  convey  any 
precise  instruction.  It  will  be  more  prohtable,  as  resting  upon 
more  specified  gi'ounds,  to  examine  carefully  the  deliberate  opiri- 
ions  of  deeply  learned  judges,  upon  an  act  framed  with  a  partic- 
ular view  to  suppress  frauds,  (the  13  Eliz,  c.  5,)  and  therefore  an 
act,  according  to  the  rule  under  consideration,  to  be  hberally  and 
beneficially  construed,  to  promote  that  end.  It  was  held  in  the 
construction  of  tliis  statute,  that  "  the  purchaser  who  shall  avoid 
a  precedent  covenant  made  by  fraud  and  covin,  must  be  a  pur- 
chaser for  money  or  other  valuable  consideration ;  for,  although 
it  is  said  in  the  preaml)le,  'for  money  or  other  (jood  consideration,' 
and  likewise  hi  the  body  of  the  act,  'or  other  {/ood  consideration,' 
yet  these  words  are  only  to  be  intended  of  valuable  consideration  ; 
and  that  appears  by  the  clause  which  concerns  those  who  had 
powers  of  revocation ;  for  there  it  is  said,  'for  money  or  other 
good  consideration  paid  or  given,'  and  this  word  'paid'  is  to  be 
referred  {reddendo  sinr/ula  singuU.s)  to  'money,'  and  'given'  is  to  be 
referred  to  good  consideration  ;  so,  the  sense  is, — for  money  paid, 
or  other  good  consideration  given,  which  Avords  exclude  all  consid- 
erations of  nature  or  blood,  or  the  like.  And  this  latter  clause 
doth  well  expoimd  these  words  mentioned  before  ;  for  if  consid- 

a  Br.  Pari.  pi.  13  ;  citing  11  Hen.  4,  TG. 

b  St.  Peter's,  York,  Dean  and  Ch.  v.  Middeborough,  2  Y.  <t  J.  196. 

0  Johnes  v.  Johnes,  3  Dow.  15.     S.  P.  Acheson  and  Everitt,  Cowp.  391. 


262  EXCEPTIONS  TO   HTPJCT   CONSTRUCTION. 

eration  of  natm-e  or  blood  slioiild  be  good  consideration  -wdtliin 
the  proviso,  the  statute  would  serve  for  Httle  or  nothing,  and  no 
creditor  would  be  siu-e  of  his  debt." 

So,  "  where  one  indicted  for  recusancy,  and  having  the  intent 
to  flee  beyond  sea,  made  a  gift,  &c.,"  it  was  held  within  tliis  act; 
"  the  words  to  defraud  creditors  and  others  of  their  "  {inter  alio) 
" forfeitures,"  extending  to  those  "who  had  cause  of  action  or 
suit,"  or  "  where  anything  shall  by  law  be  forfeit  to  the  king  or 
subject." 

Again,  in  an  obhgation  void  by  5  Edw.  6,  c.  16,  was  a  lawful 
covenant  for  repayment  of  money  m  a  certain  case :  held,  that  "if 
the  addition  of  a  lawful  covenant  should  make  the  obligation  of 
force,  even  as  to  that, — the  statute  would  serve  for  little  or  no 
l)urpose ;  "  for  this  cause  it  was  adjudged  that  the  obligation  was 
utterly  void,  a 

It  should  seem  that  a  statute  for  the  discharge  of  insolvent 
debtors  ought  to  be  constnied  strictly,  quoad  the  cessio  honorum 
and  the  rights  of  creditors,  because  it  gives  away  the  property  of 
the  subject.  "  Let  a  statute  be  ever  so  charitable,"  said  Holt,  C. 
J.,  "  If  it  give  away  the  property  of  the  subject,  it  ought  to  be 
constnied  strictly."  h 

It  has  been  already  stated,  that  a  statute  may  be  penal  in  one 
part,  and  remedial  in  another  part,  c  There  is  no  impropriety,  it 
remains  to  be  observed,  in  putting  a  strict  construction  on  a  penal 
clause,  and  a  liberal  construction  on  a  remedial  clause,  in  the 
same  act  of  parliament.  This  has  been  done  on  the  statutes 
which  make  it  a  felon}"  to  burn  houses  and  other  property,  and 
give  those  who  sutler  from  the  felony,  a  remedy  against  the  hun- 
dred. So,  the  23d  section  of  the  stat.  11  Geo.  2,  c.  19,  authoriz- 
ing the  sheriff  to  grant  replevins  on  taking  bonds,  in  every  replevin 
of  a  distress  for  rent,  is  remedial,  and  shall  be  constnied  liberally, 
though  the  22d  section  is  penal,  and  has  been  constnied  strictly,  d 

Statutes,  though  peiial,  have  been  "  taken  by  intendment,"  to 
the  end  that  they  should  not  be  illusory,  but  should  take  effect 
according  to  the  e'xpress  intention  of  the  makers  of  the  act. 
Thus,  by  the  stat.  25  Edw.  3,  the  killing  of  a  master  is  made 
treason,  and  it  extends  by  constniction  as  has  been  sho^^^l,  to  the 
mistress,  e  The  stat.  3  Hen.  7,  c.  1,  is,  that  the  wife  or  heir  of 
him  so  slain,  shall  have  the  appeal;  the  heir  of  a  woman  who  was 
murdered  shall  have  the  appeal;  iov  apices  juris  non  .sunt  jura./ 

The  letter  of  the  law  has  now  been  largely  treated,  and  its  spirit 
copiously  discussed,  further  it  is  indispensably  necessary  in  the 
construction  of  statutes,  to  have  regard  to  their  provisions ;  to  see 
of  luhat  they  treat;  the  quid  as  well  as  the  quo  modo.     For  a 

a  Tw-yne's  case,  3  Kep.  83.  hl2  Mod.  513. 

c  Dougl.  702.  d  Short  V.  Hubbard,  2  Biug.  355. 

e  Poulter's  case,  11  Eep.  34.  /4  Eep.  4. 


EXCEITIONS  TO  H'J'ltlCT  CONSTRUCTION.  2G3 

statute  which  treats  of  things  or  persons  of  an  inferior  lank  can- 
not, by  any  general  words,  l)e  (;xt(in(le(l  t(i  tliose  of  a  su])erior. 
Thus,  an  old  statute  treating  of "  abbots,  priors,  hospitallers,  6:c.,'''a 
and  a  later  act  speaking  of  "  deans,  })relic'ndaries,  parsons,  vicars, 
and  others  havhig  spiritual  promotion,"  hav(^  been  respectively 
lield  not  to  extend  to  bishops ; — a])b(jts  and  deans  being  the 
highest  persons  named,  and  bishops  being  of  a  still  higher  order,  h 
80  where,  in  2  Westm.  cap.  47,  "for  the  protection  of  the  salmon 
fishery  in  the  Humber,  Ouso,  Trent,  etc.,"  Tlinmcsis — "  nol/ila  Uhid 
Jlumen'  is  not  named  ;  though  there  be  the  gtuieral  words  "  cf 
omnes  alke  aquce  in  rcyno  iji  gnibiis  .saliiioncs  cajiinntnr" — the 
Thames,  therefore,  is  added  by  another  act, — and  in  the  first 
place. c 

Yet,  where  in  the  a.iil<:uli  dm',  it  was  couiplained,  (cap.  ix.) 
"  that  the  king's  officers  did  some  time  take  i\\Q  parsons  beasts  in 
the  king's  highway  ;"  and  the  words  were  aniindlia  recforum,  tins 
law  extended  to  abbots,  priors,  and  the  like.  But  this  is  not  in- 
consistent with  the  received  and  familiar  doctrine  ;  for  the  words 
persome  ecdesiasllcce  afterwards  occurring  in  the  act,  "  parsons" 
were  considered  as  being  here  named,  for  example. 

But  in  the  stat.  of  Marlbridge,  cup.  11),  a  ])rovision  is  made 
"touching  essoigns  in  counties,  hundreds,  or  in  courts  baron,  or 
in  other  courts;"  and  here,  "although  the  act  beginneth  with 
inferior  courts,  contrary  to  rales,  (as  is  known  by  common  expe- 
rience,) the  general  words  vel  in  aliis  cnriis  are  interpreted  to 
extend  to  the  king's  courts  of  record  at  AVestminster,  and  other 
courts  of  record.  And  tlie  cause  is,  for  that  otherwise,  these  gen- 
eral words  should  be  void  ;  for  it  cannot,  according  to  the  general 
rule,  extend  to  inferior  courts,  for  none  be  more  inferior  or  lower 
than  these  that  be  particularly  named  ;  and  so  note  a  just  excep- 
tion out  of  the  general  rale."  d 

It  is  only  repeated  here,  on  account  of  its  relation  to  the  maxim 
under  discussion,  that  where  general  words  follow  particular  ones, 
the  rale  is  to  construe  them  as  applicable  to  persons  ejnsdeni  gen- 
eris. "  Considering  then,"  says  Lord  Tenterden,  "  in  Sandiman  v. 
Breach,  e  that  in  tlie  3  Car.  1,  c.  1,  (passed  to  prevent  traveling  on 
the  Lord's  day,)  carriers  of  a  certain  description  are  mentioned, 
and  that  in  the  29  Car.  2,  c.  7,  drovers,  horse-coursers,  waggoners 
and  travelers  of  certain  descriptions  are  specifically  mentioned,  we 
think  that  the  words  '  other  person  or  persons,'  cannot  have  been 
used  in  a  sense  large  enough  to  include  the  owner  and  driver  of  a 
stage  coach." 

Such  are  the  principal  rales  relating  to  the  construction  of 
statutes ;  a  few  others  may  perhaps  remain  unnoticed,  of  mmor 

a  Westm.  2,  cap.  41.  6  2  Rep.  46. 

(•  2  Inst.  478.  e  7  B.  &  C.  100. 

</  2  Inst.  13a 


I 


264  EXCEPTIONS  TO   STKICT   CONSTEUCTION. 

importance.  *  It  is  doubtless  very  desii'able  that  statutes  should 
be  framed  in  such  clear  and  precise  terms,  as  to  secure  them  from 
all  ambiguity,  and  from  all  doubts  and  criticism  as  to  their  mean- 
ing. But  it  is  to  be  feared,  that,  from  the  habits  of  legislators  and 
the  imperfections  of  lang-uage,  such  an  event  is  quite  hopeless,  and 
the  attempt  impracticable.  It  is,  unquestionably,  often  owing  to 
the  want  of  technical  skill  in  the  makers  of  the  law,  that  statutes 
give  rise  to  such  distressing  doubts,  from  the  ambiguity  that  at- 
tends them.  Great  experience  and  learning  are,  however,  it  ought 
to  be  remembered,  no  less  requisite  for  the  interpretation,  than 
for  the  preparation  of  laws.  "  It  would  be  quite  visionary,"  says 
the  sensible  and  candid  commentator  on  the  laws  of  the  United 
States  of  America,  "  to  expect  in  any  code  of  statute  law,  such 
precision  of  thought  and  perspicuity  of  language,  as  to  preclude 
all  uncertainty  as  to  the  meaning,  and  exempt  the  community  fi'om 
the  evils  of  vexatious  doubts  and  litigious  interpretations.  Vari- 
ous and  discordant  readings,  glosses  and  commentaries,  will  inevit- 
ably arise  in  the  progress  of  time,  and  perhaps  as  often  from  the 
want  of  skill  and  talent  in  those  who  comment,  as  in  those  who 
make  the  laws."  a 

a  Kent's  Comm.  Vol,  1,  450. 

*  As  that  entries  make  good  interpreters:  "  jndicial  jirecedents,  and  the  right 
entries  of  pleas  are  good  interjDretations  of  statutes."  Dich<m  per  Lord  Coke,  2 
Inst.  380. 


EQUITABLE  CONSTRUCTION.  '  265 


CIIAPTEU  VIII. 

PARTICULAR  RULES  OF  CONSTRUCTION  APPLICABLE  TO  DISTINCT 
PARTS  OF  STATUTES:  TITLE,  PRE A:\n5LE,  CLAUSES,  PROVISOS: 
JL'DICLVL  OR  AUTHORITATIVE  EXPOSITION  OF  THE  MEANING  OF 
PARTICULAR  WORDS  OR  PASSAGES  TO  BE  FOUND  IN  ACTS  OF 
PARLIAMENT. 

The  comprclicnsivu  inunnoi-  iuAvliich  tliu  several  subjects  of  the 
classifieatiou  of  statutes ;  the  analysis  of  statutes  and  the  rales 
for  then- construction,  have  been  treated  in  the  preceding  chaj)- 
ters,  has  necessarily  anticipated  much  of  Avhat  occuiTcd  to  l)e  said 
on  the  subject  of  the  particular  rules  of  interpretation  a])plicable 
to  distinct  parts  of  acts  of  ])arlianient.  Examples  may  yet  be 
atibrded  of  the  degree  of  influence  which  the  title  or  jireamble 
ought  to  exercise  over  the  enacting  clause,  or  one  clause  over  an- 
other clause,  or  general  words  over  special  provisions  in  an  act : 
but  as  regards  either  leading  principles  or  established  maxims, 
little  curious  or  useful  remains  to  be  added.  It  is  proposed,  how- 
ever, to  proceed  to  a  succinct  statement,  or  brief  recapitidation, 
of  the  rules  of  exposition  aliecting  the  constituent  parts  of  acts 
of  parliament. 

The  stylo  and  title,  it  will  bo  remembered,  is  no  parcel  of  the 
act ;  but  the  object  of  an  act  is  often  avowed  in  the  title,  as  well 
as  in  the  preamble.  Yet  though  the  title  of  an  act  may  occasion- 
ally shed  lijrht  on  the  former  law  and  the  contemplated  changes, 
it  is  really  in  itself,  -without  legislative  imjiort. 

The  preamble  states,  with  more  or  less  accuracy,  the  object  of 
a  law_  and  the  occasion  of  its  making.  Its  first  legitimate  and  un- 
questioned use,  is  to  ascertam,  Avliat  the  cases  are,  to  which  the 
act  was  intended  to  apply.  It  has  never  been  disputed,  that  the 
preamble  to  an  act,  may  be  properly  used,  to  ascertain  and  fix  the 
subject-matter  to  which  the  enacting  part  is  to  be  api^Hed.  a  ^ 

It  is,  at  the  same  time,  incontrovertible,  that,  if  the  enacting 
words  can  be  shown  to  go  beyond  the  preamble,  (and  that  they 
may  be  justifiably  earned  beyond  the  preamble,  there  is  no  man- 

a  Fellowcs  v.  Clay,  4  Q.  B.  R.  330.  Salked  v.  Johnson,  1  ILire  19G,  and  the 
mimerous  cases  there  cited. 

Note  1 . — The  reason  why  a  preamble  may  be  referred  to,  to  determine  the  reason 
and  intent  of  the  legislature  when  the  language  is  ambiguous,    is,    that  it  states 
the  reasons  and  objects  of  the  law.     U.  S.  v.  Webster,  Davies  38.     If  the  reasons 
appear  in  any  other  equally  solemn  document  it  may  also  be  resorted  to.  id. 
34 


2GG  "  THE   PKE.VJMBLE.. 

ner  of  doubt ;  if  tlie  words  be  seen  to  embrace  any  other  case 
Avitliin  the  mischief  songht  to  be  remedied,)  etlect  must  bo  given 
to  such  larger  wcnxls.  And  a  contrary  construction  is  declared  to 
be  unfounded,  mischievous  and  dangerous,  a 

The  doctrine  received  Avith  the  greatest  difficulty,  and  A\hich 
occasioned  the  strongest  controversy  in  Westminster  Hall,  is,  the 
the  proposition,  that  the  preamble,  may  be  sometimes  used,  to 
control  and  cut  down  the  enacting  part.  This  use  of  the  preamble 
to  an  act  of  parliament,  to  restrain  the  operation  of  its  enacting 
clauses  m  their  a])plication  to  cases  witliin  the  act,  formerly  led  to 
much  dilterence  of  opinion,  and  is  approached  "svitli  great  caution 
by  modern  judges.  Lord  Tenterden,  in  the  case  of  Halton  v. 
Cave  warily  pronounced  the  legal  doctrine  upon  this  subject  in  the 
following  terms: — "The  enacting  words  of  an  act  of  parliament,  are 
not  always  to  be  limited  by  the  words  of  the  preamble,  but  must, 
in  many  instances  go  beyond  it.  Yet  the  words  in  the  enacting 
part,  must  be  confined  to  that,  which  is  the  plain  object  and  gen- 
eral intention  of  the  legislature  in  passing  the  act ;  and  the  pre- 
amble aftbrds  a  good  clue  to  discover  what  that  object  was."  h 

Perhaps,  in  the  history  of  American  jurisprudence  and  of 
AmeriGan  fundamental  law,  there  is  no  single  paragraph  that  pos- 
sesses more  profound  significance,  in  the  expression  of  the  object 
and  intent  of  the  instrument,  and  of  its  framers,  than  that  of  the 
preamble  to  the  federal  constitution.  The  highest  judicial  author- 
ity ever  accords  to  it  a  significance  becoming  an  instrument  wdiich 
was  laying  the  deep  fomidations  of  a  national  government  for 
American  empire  which  should  rest  on  the  solid  basis  of  the  will 
of  an  intelligent  and  a  free  people  ;  the  highest  original  source  of 
all  legitimate  earthly  authorit}". 

This  preamble  expresses  the  whole  spirit  of  the  instrument ;  and 
while  it  is  neyer  resorted  to  to  enlarge  the  powers  confided  to  the 
general  government,  or  to  any  of  its  departments  ;  and  though  it 
confers  no  power,  jJO'  se,  it  has  ever  been  referred  to,  and  has  been 
used  for  the  purpose,  as  its  true  office  would  seem  to  be,  to  ex- 
pound and  express  the  nature,  extent,  and  application  of  the  powers 
confeiTcd  in  the  constitution  itself. 

Its  w^hole  history  assures  us,  that  this  preamble  was  not  adopted 
as  a  mere  formulary ;  but  as  the  most  solemn  promulgation  of 
fundamental  facts,  vital  to  the  character  and  future  operations  of 

a  Pel'  Lord  Denman,  ante,  p.  505,  and  per  Lord  Ellenborough  in  E.  v.  Marks, 
504. 
blB.  &  A.  538. 


THE  PREAMBLE.  267 

a  government  of  a  great  people.  The  design  of  the  establishment 
of  this  constitution,  is  concisely  and  beautifully,  but  briefly  ex- 
pressed ;  and  it  comprehends  six  distinct  objects.  1st,  To  fonn  a 
more  perfect  union  ;  2d,  To  establish  justice  ;  3d,  To  ensure  domes- 
tic tranquility  ;  4th,  To  provide  for  the  common  defence  ;  5th,  To 
promote  the  general  welfare  ;  Gth,  To  secure  tlie  blessings  of  liberty 
to  themselves  and  tlieir  posterity.  Hero  is  found  condensed,  the 
reasons  which  have  ever  had  their  influence  upon  reflecting  judi- 
cial muids  in  giving  constniction  to  this  great  fundamental  law, 
the  sheet  anchor  of  our  pohtical  hoj^es. 

1.  The  first  proposition  to  bo  advanced  is,  tluit  the  preamble 
cannot  extend  tlie  enacting  clause.  In  support  of  this  doctrine, 
the  case  of  AVilson  v.  Knabley  may  be  cited,  a  In  that  case. 
Lord  Ellenborougli  said,  "  I  agree  that  the  grievances  recited  in 
the  preamble  of  the  act,  would  have  led  one  to  su])poso  that  the 
legislatiire  meant  to  have  given  a  larger  remedy  than  the  action  of 
debt,  against  the  deviset;  of  land,  to  recover  damages  for  a  Ijreach 
of  covenant  by  the  devisor.  But  for  us  to  extend  the  words  to 
the  action  of  covenant,  would  be  to  legislate,  and  not  to  constiiie 
the  acts  of  the  legislature."  Yet  m  a  late  case,  the  preamble  was 
called  in  aid  to  give  a  meaning  to  a  doubtful  clause  ;  where  the 
]>articular  writ  (Elegit,)  was  not  expressly  named  in  the  enacting 
clause.  J> 

2.  The  preamble  cannot  restrain  the  enacting  clauses,  except 
where  the  words  are  ambiguous ;  or  are  not  sufficiently  large  to 
(nnbraco  the  case  ;  or  arc  so  larg(%  that  convenience  and  the  policy 
of  the  law,  clearly  require,  that  their  generality  shall  be  restrained,  c 

Lord  Coke  commends  such  construction  of  an  act,  as  makes  the 
purview  agi'co  with  the  preamble  ;  but  not  such,  it  is  said  in  the 
case  of  the  King  v.  Althoes,  d  as  may  limit  and  confine  the  enact- 
ing part  to  the  preamble. 

It  has,  it  should  seem,  been  sometimes  too  broadly  laid  down, 
that  the  generality  of  the  enacting  clause  sltaJl  he  restrained  and 
qualified  liy  the  preamble.  In  Copeman  and  Gallant,  c  it  was  said 
by  Lord  Cowper,  that  ho  could  by  no  means  adopt  the  notion  that 
a  preamble  shall  restrain  the  operation  of  an  enacting  clause ;  and 
he  added,  that  if  the  ])reamble  of  the  Coventiy  act  had  only  re- 
cited the  barbarity  of  slitting  Coventry's  nose,  and  the  enacting 
clause  had  been  general  against  the  doing  of  anything  whereby  a 
man  is  disfigured  or  defaced,  it  might,  agreeably  to  that  notion, 
have   been  said,  that  cutting  ofl:  the  lip,  or  putting  out  an  eye, 

a  7  East,  128.  h  Nash  v.  Allen.  4  Q.  B.  E.  781. 

c  Crespigny  v.  Wittenoou,  4T.  E.  193,  and  see  ante,  p.  508. 
d  8  Mod.  144.  e  1  P.  Wms.  320. 


268  THE   PREAMBLE. 

"Nvoukl  not  have  been  witlim  the  meaning  of  this  statute  ;  because 
neither  of  these  is  mentioned  in  the  preamble.  In  Ryall  v. 
Eowles,  a  Parker,  Ch.  Baron,  said  :  "  It  is  laid  down  in  1  Jo.  163, 
and  Palmer  185,  upon  the  construction  of  the  stat.  13  Eliz.  that 
the  preamble  shall  not  restrain  the  enacting  clause.  But  I  take 
it  to  be  agreed,  that  if  the  not  restraining  the  generality  of  the 
enacting  clause  Avill  be  attended  with  an  inconveniency,  the  pre- 
amble .sitall  restrain  it.  In  Copeman  and  Gallant,  I  must  own  that 
Lord  Chancellor  Cowper  exploded  the  notion  of  the  preamble's 
governing  the  enacting  clause,  and  went  upon  another  reason.  I 
have  great  honor  for  Lord  Cowper ;  but  though  I  approve  of  the 
decree,  I  cannot  subscribe  to  the  reasons  of  it." 

The  opmion  of  Lord  Cowper  with  respect  to  the  operation  of 
the  preamble  was  'equally  disapproved  of  by  Lord  Hardwicke.  In 
the  same  case  of  Byall  and  Bowles,  b  the  later  chancellor  said :  "I 
shall  not  scruple  to  declare  that  I  am  strongly  inclined  to  be  of 
opinion  with  Lord  Holt  and  my  lord  chief  baron,  that  this  clause 
is  to  be  restrained  by  the  preamble  ;  and  differ fi'om  Lord  Cowper 
in  the  case  of  Copeman  and  Gallant." 

The  general  purview  of  a  statute  is  not,  however,  necessarily  to 
be  restramecl  by  any  words  introductory  to  the  enacting  clauses. 
Larger  and  stronger  words  in  the  enactment  part  of  a  statute  may 
extend  it  beyond  the  preamble,  c  If  the  enacting  words  are  plain, 
and  sufficiently  comprehensive  to  embrace  the  mischief  intencled 
to  be  prevented,  they  shall  extend  to  it,  though  the  preamble  does 
not  w^arrant  the  construe tion.(?  In  the  case  of  B.  v.  St.  Peter  and 
St.  Paid,  in  Bath,  it  was  contended  that  the  construction  of  the 
certificate  act  was  to  be  restrained  by  the  preamble.  Lord  Mans- 
field said  :  "  Whatever  might  be  the  leadmg  motive  in  passing  that 
act,  that  statute  authorizes  the  whole  body  of  the  poor,  of  what- 
ever denomination,  and  with  whatever  object  to  leave  their  own, 
and  to  remove  into  any  other  parish  ;  provided  they  can  obtain 
the  protection  of  a  certificate.  Contrary  to  the  spirit  and  poHcy 
of  the  act,  and  not  obhged  by  the  letter,  the  court  will  not  make 
an  exception  of  a  case  winch  the  act  has  not  itseK  excepted."  e 

In  B.  V.  Pierce,/  Lord  Ellenborough  said  :  "  It  cannot  by  any 
means  be  regarded,  as  an  universal  rule  that  large  and  compre- 
hensive words  in  the  enacting  clause  of  a  statute  are  to  be  re- 
strained by  the  preamble.  In  a  vast  number  of  acts  of  parhament, 
although  a  particular  mischief  is  recited  in  the  preamble,  yet  the 
legislative  provisions  extend  far  beyond  the  mischief  recited.  And 
whether  the  W'Ords  shall  be  restrained  or  not,  must  depend  on  a 
fair  exposition  of  the  particular  statute  in  each  particular  case, 
and  not  upon  any  universal  rule  of  construction."     In  Freeman  v. 

a  1  Atk.  174.  h  Id.  182. 

c  Cowp.  543.    E.  V.  Marks,  3  East,  160.  d  3  Atk.  203. 

elBott.443.  /3M.  &S.  66. 


POWER   OF  THE   PKEAJIELE.  2(J9 

Lambert,  a  the  same  powerful  chief  justice  said  :  "  I  confess,  I  am 
not  for  restraining  the  generality  of  the  enacting  clause  by  the 
preamble,  without  some  reas(m  for  it."  And  ]Jampier,  J.,  said : 
"  I  have  al\va}s  understood  it  as  a  standing  rule  in  the  construc- 
tion of  acts  of  parliament ;  that  the  enacting  clause  shall  not  be 
restrained  by  the  preamble,  if  the  enacting  words  are  large  enough 
to  comprehend  the  case."  In  a  late  case  of  Hughes  v.  Done,  b 
Lord  Denman  said :  "  To  iutroduce,  in  the  enacting  part,  an  ex- 
cejjtion  not  there  to  be  found,  and  which,  if  intended  might  ha^■e 
been  so  easily  introduced  and  expressed,  is  we  think  to  curtail  and 
abridge  the  meaning  of  plain  win-ds  in  a  manner  wliich  no  rule  of 
construction  warrants." 

But  though  the  preamble  cannot  control  the  enacting  part  of  a 
statute,  which  is  ex})ressed  in  clear  and  unanil)iguous  terms,  yet,  if 
any  doubt  arise  on  the  words  of  the  enacting  part,  the  preamble 
may  be  resorted  to,  to  explain  it.  In  truth,  it  then  resolves  itself 
into  a  question  of  intention ;  or  in  other  words,  recourse  is  had  to 
the  primary  rules  of  interpretation.  For  the  Avords  being  doulot- 
ful,  the  preamble  is  compared  with  the  rest  of  the  act,  in  order  to 
collect  the  intention  of  the  legislature,  whether  they  meant  it  to 
extend  to  a  case  like  that  under  consideration.  The  preamble  of 
the  stat.  22  Geo.  2,  c.  44,  which  was  confined  to  marinei-s  and 
soldiers,  recited  that  mariners  and  sokhers  of  diiierent  trades,  and 
apprentices  who  had  not  served  their  times,  were  prohibited  from 
setting  up  their  trades  in  corporate  towns,  &c.,  either  by  reas(jn 
of  by-laws  therein  made  or  of  the  5th  Eliz.  c.  4.  To  remed}'  this 
inc'onvenience  it  Avas  enacted,  that  all  such  mariners  and  soldiers 
might  set  np  their  trades,  in  any  town,  notwithstanding  these  dis- 
abdities.  The  stat.  26  Geo.  3,  c.  107,  referring  expressly  to  tlu' 
former  statute,  says,  that  every  jjerson  having  served  in  the  militia, 
may  set  up  a  trade  "  as  freely  and  with  the  same  provisions,"  <tc. 
It  was  held  clear  on  the  meaning  of  the  acts,  wduch  were  made  in 
pari  materie,  and  referring  to  the  titles  and  preambles  to  discover  the 
occasion  and  object  of  maldng  the  laws,  that  they  related  to  persons 
exercising  trades,  and  not  to  common  laborers,  or  husbandmen,  c 

The  preamble  of  the  annuity  act  recites  "  the  pernicious  prac- 
tice of  raising  money  by  the  sale  of  life  annuities :"  an  annuity 
granted  in  consideration  of  the  grantee's  giving  up  his  business  to 
the  grantor,  was  held  not  within  the  spirit  or  object  of  the  act,  which 
was  intended  as  a  check  against  hard  bargains ;  the  preamble 
stating  as  the  occasion  of  the  act,  the  mischiefs  of  granting  annui- 
ties for  small  consideration  l>y  improvitlent  persons.  d> 

In  Salkeld  v.  Johnson,  e  Wigram,  V.  C,  said :  "  Courts  of  law 
have  held  that  the  mere  subject-matter  without  any  preamble,  may 
safely  be  relied  upon   for  restraining  the  operation  of  general 

a-tM.&S.  238.  6  1Q.  B.  R.  301. 

c  R.  V.  Gwenop,  3  T.  R.  13o.  d  Crespiguy  v.  Wittenoon,,  -1  T.  R.  791. 

e  1  Hare,  I'JG. 


270  POWER  OF  THE   TEEAMBLE. 

words.  The  stock-jobbing  acts  in  terms  are  general,  and  would 
apply  to  transactions  in  foreign  stock  :  a  yerbal  construction  wliicli 
the  courts  have  rejected,  in  favor  of  the  obvious  intention  of  the 
legislature  to  apply  them  only  to  British  stocks."  Henderson  v. 
Bisc ;  a  Wells  v.  Porter  ;  /;  Elsworth  v.  Cole,  c 

Clauses  will  sometimes  be  governed  by  provisions  in  another 
section  of  the  act.  A  company  were  incorporated  by  statute  and 
empoAvered  to  make  a  railway  through  certain  districts.  By  sect. 
5  of  the  act,  they  w-ere  chrected  to  leave  sufhcient  space  for  the 
public  to  pass,  or  to  form  new  roads  m  hen  of  any  existing  ones 
that  might  be  injured  by  their  railway.  Section  70  empowered 
proprietors  of  lauds,  mines,  <tc.,  to  make  railways  through  their 
own  lands  and  those  of  other  persons  consenting,  and  across  and 
along  any  road  or  roads  to  communicate  with  the  principal  rail- 
way ;  and  no  reference  A\as  made  to  imj  former  limitation  of 
powers.  It  was  nevertheless  determined  that  the  power  in  this 
clause  was  not  absolutely  given,  but  must  be  subject  to  the  pro- 
visions of  section  5,  as  to  the  condition  of  leaving  space  enough, 
independent  of  the  railways,  for  the  public  to  pass.  <l 

A  railway  act  empowered  the  company  to  make  and  maintain 
their  railway  over  certain  lands  to  a  specified  point.  Section  4 
enacted,  that  nothing  m  that  statute  should  authorize  the  company 
to  enter  upon,  take  or  damage  any  lands  without  the  consent  of 
the  owner  and  occupier.  Sections  16  and  17  empowered  the  com- 
pany to  contract  with  landowners  for  the  purchase  of  land,  and 
for  gTants  of  way-leave.  Section  18  contained  a  clause  of  arbit- 
ration in  case  any  person  wilhng  to  grant  or  demise  such  way- 
leave,  should  not  agree  with  the  company  as  to  terms.  Section  43 
enacted,  that  "  in  every  case  in  which  the  said  railway  shall  cross 
any  other  railway,  the  commmiication  between  them  shall,  if  the 
company  and  the  owners  of  such  other  railway  do  not  agree  about 
the  same,  be  made  in  such  maimer  as  shall  be  directed  by  two 
engineers  acting  as  arbitrators,  and  that  the  company  shall  make 
satisfaction  (to  be  ascertained  in  the  manner  before  pointed  out) 
for  temporary,  permanent,  or  recurring  injury,  to  be  occasioned  by 
such  crossing."  No  regulation  was  made  as  to  the  maimer  in 
which,  and  times  when,  carriages  on  the  first-mentioned  railway 
should  cross  the  other.  The  Court  held  that  section  43  did  not 
clearly  introduce  a  compulsory  power  in  the  case  where  a  railway 
was  to  be  crossed,  and,  therefore,  that  the  provision  of  section  4 
must  be  taken  to  govern  this  clause,  and  make  consent  necessary. 
Although  it  should  be  impossible  without  so  crossing,  to  carry  the 
first-mentioned  railway  to  the  pomt  specified  in  the  act.  e 

a  3  Starkie,  158.  h  3  Bingh.  N.  C.  722. 

0  2  M.  &  W.  31.  .  d  Rex  v.  Morris,  1  B.  &  A.  44:1. 

e  The  Clarence  Railway  Co.  v.  The  Great  North  of  England  Junction  Railway 
Company,  4  Q.  B.  R.  46. 


LOCAL,   rARTICULAll   AND   KI'ECLVL  ACTS.  271 

A  local  act  provided  (in  sect.  159),  that  if  the  company  fonned 
under  that  act,  wilfully  entered  upon  and  took  possession  of  lands 
without  consent  and  Avithout  liaviii}^  made  a  required  i)ayment  or 
deposit,  they  should  be  ]ial)l('  to  certain  s])ecihed  penalties  :  })r()- 
viso,  that  the  company  sliould  not  he  liable  to  the  penalties,  if 
they  should  bona  Jidt  and  without  collusion,  have  paid  or  deposited 
the  compensation ;  thou^^h  not  to  the  tnie  owner.  Held,  bv  the 
court  of  exchequer,  that  the  word  "  wilfully"  does  not  override  the 
whole  of  the  lo'Jth  section  ;  but  applies  only  to  the  tirst  part  of  it. 
Held  further,  that  the  section  did  not  ap])ly  in  that  case,  the  case 
not  being  within  the  mischief  the  legislature  intended  io  guard 
against.  That  a  penal  se('tion  should  be  strictly  construed  :  while 
a  proviso  which  has  the  ell'ect  of  saving  parties  from  penal  enact- 
ments, should  l)e  liberally  construed. 

"  We  are  all  of  opinion,"  said  Pollock,  C.  13.,  "  that  the  section 
cannot  be  read  precisely  as  it  stands.  We  must  give  it  some  sen- 
sible construction  ;"  (it  could  not  be  read  gi'ammatically :)  We 
ought  so  to  read  the  159tli  section  as  to  bring  the  company  in  this 
instance  within  the  protection  of  the  proviso  at  the  end  of  the 
section,  a 

"  Upon  all  acts  of  parliament  such  construction  should  l)e  made, 
as  that  one  clause  shall  not  frustate  and  destroy,  but,  on  the  con- 
trary, shall .  explain  and  sui)i)ort,  another."  b  In  the  case  before 
cited,  on  the  annuity  act,  c  clauses  and  sections  in  one  part  of  the 
act  were  made  to  illustrate  obscure  passages  in  another  part. 
Thus  the  third  and/ourth  clauses  of  the  annuity  act,  17  Geo.  3,  c. 
2G  (requiring  the  consideration  to  be  paid  in  money,  or  if  paid  in 
notes,  and  those  notes  afterwards  not  paid,  empowering  the  court 
to  order  the  annuity  deeds  to  be  cancelled,)  were  refeiTed  to  by 
two  of  the  judges,  as  showing  the  considerations  contemplated  by 
the  act ;  as  was,  with  a  like  object,  the  seuenlh  section,  which  pro- 
hibits brokers  takmg  more  than  ten  shillings  for  every  100/.  actually 
paid  ;  while  another  judge  held  it  apparent  from  the  luhole  act,  that 
it  did  not  extend  to  a  case  like  the  one  then  before  the  court.  "In 
cases,"  he  said,  "where  money  has  been  paid  as  the  considera- 
tions, the  cou.rts  order  the  money  to  be  restored  when  they  vacate 
the  annuity  deeds  ;  but  the  business,  the  relinquishment  of  which 
was  the  consideration  of  this  annuity,  we  cannot  order  to  be  re- 
stored." In  the  case  of  E.  v.  Cartwright,  d  where  the  question 
was,  whether  a  provision  in  an  act  were  general,  or  related  only  to 
assaults  on  revenue  officers,  qua  officers :  Buller,  J.,  said,  the  in- 
tention might  be  collected  from  other  parts  of  the  act.  "  It  is  fan- 
ro  uifer  that  the  legislature  meant  to  extend  the  indenmity  in  the 
lirst  section  to  all  those  cases  in  which,  by  the  subsequent  clause 

a  Hutchinson  v.  The  Manchester,   Bury,    and   Ivosseldale   llailway   Compauv, 
Easter  Term,  1846. 
h  Hard.  314,  pi.  1.  c  Crespigney  v.  "Wittenocim,  1  T.  E.  791. 

d  4  T.  R.  490, 


272  LOCAL,   rAETICUL-VR   AND   SPECIAL  ACTS. 

they  gave  the  right  of  changing  tlic  venue."  In  this  instance,  and 
m  many  others,  prior  chxuses  are  restrained  by  subsequent  clauses 
in  a  statute. 

But  where  a  chiuse,  wliich  is  separate  and  substantive,  itself 
creates  an  olTence,  the  court,  it  has  been  seen,  may  give  judgment 
for  that  offence,  as  a  misdemeanor,  notwithstanding  there  be 
another  section  in  the  same  statute,  giving  a  specific  punishment,  a 

In  construing  doubtful  clauses  in  an  act  of  parliament,  it  will 
often  be  a  question  whether  a  clause  be  a  substantive  independent 
clause,  or  only  a  qualification  of  an  antecedent  clause.  Where  a 
.section  is  by  way  of  proviso,  it  can  only  be  considered  as  a  clause 
dependent  on  a  former  clause,  unless  the  manifest  intention  of  the 
legislature  reqrdre  a  different  construction.  - 

Upon  obscure  acts  of  parliament,  or  where  the  sections  are 
numerous,  involved,  and  intricate,  it  may  be  useful  to  begin  the 
work  of  interpretation,  by  an  endeavor  to  trace  the  method  which 
the  drawer  of  the  act  has  observed  mthe  distiibution  and  arrange- 
ment of  his  subject. 

A  savmg  must  be  of  a  thing  in  es.se ;  the  natiire  of  a  saving  is  to 
preserve  a  former  right,  and  not  to  give  or  create  a  new  one.  A 
sa^dng,  it  has  been  seen,  may  restrain  and  qualify  the  purview,  but 
was  never  allowed  to  overturn  it.  b 

The  effect  of  an  exception  introduced  in  the  enacting  clause, 
contradistinguished  fi'om  the  case  where  the  exception  is  found  in 
a  subsequent  clause,  c  viz  :  that  every  exception  contained  in  the 
clause  creating  an  offense  must  be  negatived,  but  where  the  excep- 
tion is  introduced  in  a  subsequent  clause,  it  must  come  by  way  of 
defense  on  the  part  of  the  defendant,  has  been  already  noticed. 

General  words,  it  is  established,  may  be  qualified  by  subsequent 
clauses  in  the  same  statute  ;  but  "  a  thing  given  in  particular,  shall 
not  be  tolled  by  general  words."  c? '     This  is  expressed  in  the  un- 

a  R.  V.  Harris,  4  T.  E.  202.  h  2  lust.  32;  Duv.  3,  b.  4,  iu  case  of  proxies. 

c  Eex.  V.  Jukes,  8  T.  E.  542. 

d  Per  Hutton,  J.,  in  Standon  v.  Univ.  Oxon.  Jo.  2G. 

Note  2. — The  general  system  of  legislation  upon  the  subject-matter  of  a  statute 
may  be  taken  into  view  in  order  to  aid  the  construction  of  a  particular  statute  re- 
lating to  the  same  subject.     Fort  v.  Bench,  6  Barb.  74. 

Note  3. — A  statute  applicable  in  terms  to  particular  actions,  cannot  be  applied 
by  construction  to  other  actions  standing  on  the  same  reason.  Jacob  v.  U.  S.,  1 
Brock.  520. 

If  general  words  in  a  statute  follow  an  enumeration  of  particular  cases,  they  are 
held  to  api^ly  only  to  cases  of  a  like  kind  with  those  enumerated.  U.  S.  v.  Irvin, 
5  McLean,  178. 

But  where  technical  words  occur  in  a  statute,  they  are  to  be  taken  in  a  technical 
sense,  unless  it  appears  that  they  were  intended  to  be  applied  differently  from 
their  ordinary  or  legal  acceptation.  1  Kent.  Com.  462,  Clark  v.  City  of  Utica,  18 
Barb.  451.     Thus,  where  a  statute  directed  that  a  coroner  should  serve  process 


LOCAL,   rAIlTICUL\U  AND   SI'ECLVL  ACTS.  273 

couth  luaxiin — (jcitcndi.s  (■hiitfinhi  iioii  porrujiliir  ad  en,  q/ae  S'peciali- 
Icr  sunt  (■o)iij)r('/i('HS(i.  <i  Not  that  this  .sentence  is  a  wliit  more 
Ijarbarous  in  its  hmguage  than  many  that  have  preceded  it,  of  the 
gems  ^vitll  w  hic-h  the  text  of  this  work  has  been  studded  and  (m- 
riched.  Ihit  unfortunately,  us  regards  the  eil'ect  of  C(^ntrast,  the 
notion  is  adopted  from  the  civilians ;  it  being  a  maxim  of  the 
Digest  that,  "  iit  Udojurc,  (jeiieri,  2)(i)'  specicrti  dcrofjaiur ;  et  illud  po- 
li-ssiiiiion  iKtlx'tnr,  qtajd  ad  .specieiit  directum  est."  The  meaning  of 
which  is,  that  when  the  law  descends  to  particulars,  such  monj 
s[)ecial  provisions  nuist  be  understood  as  exceptions  to  any  gen- 
eral rules  laid  down  to  the  contrary  ;  and  the  general  rides  nmst 
not  (vice  versa )  be  alleged  in  confutation  of  the  special  provisions.  A 
Conformably  to  this  doctrine,  it  has  been  recently  decided,  as  was 
before  shown,  c  that  Avhere  a  general  intention  is  expressed  in  a 
statute,  and  the  act  also  expresses  a  particular  intention,  incom- 
patible with  the  general  mteution,  the  particular  intention  is  to  be 
considered  in  the  nature  of  an  exception,  d 

a  8  Eep.  118  b.  h  Wootlison's  Eleni.  of  Juris.  30. 

c  P.  514.  d  Churchill  v.  Crease,  5  Bing.  180;  ib.  492-3. 

where  the  sheriff  was  a  party,  it  was  held  that  it  must  be  technically  a  party  ;  that 
being  interested  in  the  suit  was  not  .sufficient.  Merchants  Bank  v.  Cook,  4  Pick. 
•111.  So  in  regard  to  the  statute  in  regard  to  flowing  lands,  M^hich  declared  that 
the  judgment  should  ho  final,  it  was  held  that  these  words  were  to  be  taken  in  a 
technical  sense.  Suell  v.  Bridgewater,  Ac,  Co.,  24  Pick.  300.  In  regard  to  the 
word  robbery  used  in  an  act  of  congress,  it  was  held  that  robbery  was  a  technical 
term,  which  was  known,  and  its  meaning  fully  ascertained  bj'  the  common  law,  or 
civil  law,  from  the  one  or  the  other  of  which,  it  had  been  borrowed,  and  that  it  was 
necessary  to  refer  to  those  sources  for  its  precise  meaning.  United  States  v. 
Jones,  3  "Wash.  C.  C.  E.  209.  The  word  sriperxede,  was  used  in  the  militia  act  of 
ilassachusetts.  The  court  said,  the  only  way  to  ascertain  the  sense  of  the  legis- 
lature in  using  the  word,  is  to  learn  the  military'  sense  in  which  the  word  is  com- 
monly used;  for  in  the  enactment  of  laws,  the  terms  ot  art  or  peculiar  phrases  are 
made  use  of,  it  must  be  supposed  that  the  legislature  have  in  view  the  .subject- 
matter  about  which  such  terms  or  phrases  are  commonly  employed.  Ex  parte 
Hall,  1  Pick.  2G2. 

Certain  other  words,  u.scd  in  statutes,  have  their  meaning  declared  by  the 
.statute  in  this  state  as  for  examjile  under  the  general  provisions  concerning 
crimes  and  their  punishment,     2  Eev.  Stat.  69C,  7. 

§  30.  The  term  "  felony,"  when  u.scd  in  this  act,  or  in  any  other  statute,  shall 
be  construed  to  mean  an  offence  for  which  the  offender,  on  conviction,  shall  be 
liable  by  law  to  be  punished  Viy  death,  or  by  imprisonment  in  a  state  prison. 

§  31.  Whenever  the  term  "  infamous  crime,"  is  used  in  anj'  statute,  it  shall  be 
construed  as  including  every  oftence  punishable  with  death  or  by  imprisonment 
in  a  state  ])rison,  and  no  other. 

^  32.  Tlie  terms  "crime"  or  "offence,"  when  used  in  this  chapter,  or  in  any 
other  statute,  shall  be  construed  to  mean  any  oftenoe  for  which  any  criminal  pun- 
ishment may  by  law  be  inflicted. 

§33.  The  term  "personal  property,"  as  used  in  this  chajiter,  shall  be  con- 
strued to  mean,  goods,   chattels,   effects,   evidences  of  rights  in  action,  and  all 

35 


27-i  LOCAL,  PAETICULAR  AND  SPECLUL,  ACTS. 

"Words  and  phrases,  tlie  meaning  of  wliicli  in  a  statute  lias  been 
ascertained,  are,  wlien  used  in  a  subsequent  statute,  to  be  under- 
stood in  the  same  sense,  a  '  The  legal  effect  of  particular  expres- 
sions (words  or  sentences),  will  therefore  be  considered  with  refer- 
ence to — 1st,  the  courts  or  judicatures  designated  by  them  ;  2dly, 
the  proceedings  which  may  be  had  before  those  authoiities ;  3dly, 
the  offences  thereby  either  described  or  coiistituted ;  and  4tlily, 
the  punishments  ihej^  direct,  or  allow,  to  be  inflicted. 

Where  a  statute  directs  a  penalty  to  be  recovered  by  action, 
bill,  plaint,  or  information,  in  any  court  of  record,  the  courts  in- 
tended by  the  statute,  j^ro^i^o-  cxcellerdiam,  are  the  fom-  courts  of 
record  at  Westminster.  "  As,"  says  Lord  Coke,  h  "  if  it  be  spoken 
of  proof  (trial)  generally,  although  there  are  many  proofs  in  laAv, 
yet  it  shall  be  intended  of  the  best  proof,  and  that  is  by  jury  ;  if  it 
be  spoken  of  the  feast  of  St.  Michael,  where  there  are  two  feasts,_ 
it  shall  be  intended  of  the  most  worthy  and  notorious  feast.     If 

a  Bac.  Ab.  tit.  Statute  I.  h  Gregory's  case,  G  Eep.  20. 

written  instruments  by  whiela  any  pecuniary  obligation,  or  any  right  or  title  to 
property  real  or  personal,  shall  be  created,  acknowledged,  transferred,  increased, 
defeated,  discharged  or  diminished. 

§  3i.  The  term  "  property,"  as  used  in  this  chapter,  includes  personal  property 
as  defined  in  the  last  section,  and  also  every  estate,  interest  and  right  in  lands, 
tenements  and  hereditaments. 

§  35.  Where  the  term  "person"  is  used  in  this  chapter,  to  designate  the  party 
whose  property  may  be  the  subject  of  any  ofience,  such  term  shall  be  construed 
to  include  the  United  States,  this  state,  or  any  other  state,  government  or  country 
which  may  lawfully  own  any  property  within  this  state,  and  all  public  and  private 
corporations,  as  well  as  individuals. 

So  in  the  statute  called  the  "Code  of  Proceedure,"  in  civil  actions  in  this  state, 
certain  words  are  given  a  specified  definition,  as  follows: 

§462.  The  words  "real  property,"  as  used  in  this  act  are  co-extensive  with 
lands,  tenements  and  hereditaments. 

§  4G3.  The  words  "personal  property,"  as  used  in  this  act,  include  money, 
goods,  chattels,  things  in  action,  and  evidences  of  debt. 

§  464.  The  word  "property,"  as  used  in  this  act,  includes  property  real  and 
personal. 

§  465.  The  word  "  district,"  as  used  in  this  act,  signifies  judicial  district,  ex- 
cept when  otherwise  specified. 

§466.  The  word  "clerk,"  as  used  in  this  act,  signifies  the  clerk  of  the  court 
where  the  action  is  pending,  and  in  the  supreme  court,  the  clerk  of  the  county 
mentioned  in  the  title  of  the  complaint,  or  in  another  county  to  which  the  court 
may  have  changed  the  place  of  trial,  unless  otherwise  specified. 

Note  4.— "Where  the  terms  of  a  statute  which  has  received  judicial  construc- 
tion, are  used  in  a  later  statute,  whether  passed  by  the  legislature  of  the  same 
state  or  country,  or  by  that  of  another;  that  construction  is  to  be  given  to  the 
later  statute.  Commonwealth  v.  Hartwell,  3  Graj'.  450;  Euchmaboye  v.  Mottich- 
med,  32,  Eng.  L.  &  Eg.  84;  Bogardus  v.  Trinity  Church,  4  Sand.  Ch.  633;  Kigg 
V.  AVilton,  13  111.  15;  Adams  v.  Field,  21  Vt.  256.  It  is  to  be  presumed  in  such 
case,  that  the  legislature  who  passed  the  later  statute,  knew  the  judicial  construc- 
tion which  had  been  placed  on  the  former  ones,  r-nd  such  construction  becomes 
a  part  of  the  law. 


S'l'ATU'lE    ^O^Yl'IlS   AND    REMEDIES.  *215 

wpoecli  l>c  of  J.  S.  gunei-uUy,  it  .skull  be  iutciided  of  tlie  father  or 
of  the  eldest  son,  for  they  are  the  most  worthy.^  Ho,  here  it  shall 
])e  intended  of  one  of  the  superior  courts  at  Westminster;  for  it 
the  act  is  construed  according  to  the  letter,  'in  any  court  ot 
record  ;'  then  tlic;  court  of  oyer  and  terminer,  gaol  delivery,  sewers, 
slierilf's  tourn,  leet,  piepoudre,  and  others,  Avill  be  withhi  the  act. 
Then,  it  being  left  to  the  construction  of  the  law,  the  rule  is, 
'iiiifxl  vcffxi.  ('(jnirocti cf  iji  Jiibio  poHihi,  intiil'Kjurdur  in  d'ujniori  ct 

Another  reason  assigned  is,  that  hi  po^jular  actions  or  informa- 
tions, "  tcDii  pro  domino  regc,  quam  pro  scipno"  the  suit  shall  be  in 
such  court  where  the  king's  attorney-general  can  attend,  a 

Where  a  statute  speaks  of  indictments  to  be  taken  before  jus- 
tices of  the  peace,  or  "  others  having  power  to  take  indictments," 
it  shall  be  understood  only  of  other  inferior  courts,  and  not  of  the 
king's  l)ench,  or  other  courts  at  Westminster  ; />  the  rule  being  well 
established,  as  Avas  ascertained  in  the  last  chapter,  that  where 
things  of  an  inferior  degree  are  first  mentioned,  those  of  a  higher 
dignity  shall  not  be  included  under  general  words. 

Where  an  act  of  parliament  gives  authority  to  "  one"  person  ex- 
pressly, all  others  are  excluded  ;  c  a  special  power  is  ever  to  be 
strictly  pursued. " 

a  Gregory's  case,  G  rtcp.  I'J.  h  2  Kep.  IC;  2  Hawk.  c.  27,  12-1. 

c  11  Kep.  59,  Gl. 

Note  5. — "Where  a  now  right,  or  the  lucaus  of  acquiring  it  is  given,  and  au 
adequate  remedy  for  violating  it  is  given  in  the  same  statute,  the  injured  parties 
are  couiincd  to  that  rcmcdj'.  Smith  v.  Lockwood,  13  Barb.  209;  Thurston  v. 
rventico,  1  Mann,  (ilich.)  E.193;  l>assett  v.  Carlton,  32  Maine  553;  Kemvick  v. 
Morris,  7  Hill.  575. 

If  a  statute  gives  a  remedy  in  the  allirmalive  (without  a  negative  express  or  im- 
plied), for  a  matter  which  was  actionable  at  common  law,  this  does  not  take  away 
the  common  law  remedy,  but  the  party  may  still  sue  at  common  Jaw  as  well  as 
upon  the  statute.  Crittenton  v.  Wilson,  5  Cow.  1G5;  Jackson  v.  Bradt,  2  Gaines. 
1G9.  But  where  a  statute  gives  a  new  power,  and  at  the  same  time  provides  the 
nieuus  of  executing  it,  those  who  claim  the  power  can  execute  it  in  uo  other  way. 
Andover,  kc.  Turnpike  Co.  v.  Gould,  G  Mass.  40;  Franklin  Glass  Co.  v.  "White,  IJ 
id.  28(3.  "Where  an  inchoate  right  accrued  under  a  statute,  and  by  a  subsequent 
ravision  of  the  statutes,  the  proceedings  to  perfect  the  right  are  regulated  and  pre- 
scribed;— such  regulations  must  be  pursued,  or  the  party  is  remediless.  People 
'  V.  Livingston,  6  Wend.  526;  People  v.  Phelps,  id.  9.  "Where  a  statute  which  creates 
r  rightl  gives  no  remedy,  a  party  may  resort  to  the  usual  remedy.  Dudlej'  v. 
May) low,  3  N.  Y.  K.  9;  Almy  v.  Harris,  5  John.  175.  But  if  the  statute  confers 
the  right,  and  prescribes  an  adequate  remedy  for  protecting  it,  the  party  is  con- 
lined  to  the  statutory  remedy,  id.  If  the  enforcing  tribunal  is  specified,  the  desig- 
nation forms  a  part  of  the  remedy,  and  all  others  are  excluded,  id.,  and  Miller  v. 
Taylor,  -1  Burr.  2322;  Smith  v.  Lockwood,  13  Barb.  209. 


270  STATUTE  POWERS  AND   EEIMEDIES. 

■^licre  au  act  of  parliament  gives  power  to  "  two  justices  finally 
to  hear  and  determine  an  oHence,"  it  is  necessarily  supposed  that 
tliey  shall  be  together,  or,  which  is  the  same  thing,  that  they  shall 
hold  a  special  sessions  for  that  purpose.  And  the  same  construc- 
tion obtains  -when  they  arc  to  do  any  other  judicial  act,  as  to  make 
an  order  of  bastardy,  or  adjudge  the  settlement  of  a  p()or  person. 
"For,"  as  Dr.  Burn  says,  "  it  is  unknown  to  the  laws  of  England, 
that  two  persons  shall  act  as  judges  in  the  same  cause,  when  at 
the  same  tune  one  of  them  is  in  one  part  of  the  country,  and  the 
other  in  another."  a 

Generally,  it  is  considered,  that  where  a  statute  appoints  a 
thing  to  be  done  "  by  one  or  more  justices,"  without  giving  any 
appeal  to  the  sessions,  there  the  justices  in  sessions  may  do  that 
thing  ;  but  when  an  appeal  is  (/iven  to  the  sessions,  the  justices  m 
sessions  cannot  proceed  originally  therein,  because  that  method 
would  take  away  the  power  of  appealing. 

The  words,  "  general  or  quarter  sessions"  have  received  a  judi- 
cial constraction  in  E.  v.  The  Justices  of  London,  b  and  R.  v.  The 
Justices  of  Middlesex,  c 

"  Sealed  with  the  seal  of  the  said  court."  When  the  seal  pur- 
ports to  be  that  of  the  court,  the  judges  take  notice  that  it  is  such  ; 
and  it  is  not  necessary  to  prove  the  seal.  Doe  dem.  Duncan  v. 
Edwards,  d 

That  "  it  shall  be  lawful  for  the  court  to  inquire  into  the  title" 
under  stat.  7  Wm.  4,  and  1  Vict.  c.  78,  s.  24.  These  words  were 
constmed  to  require  the  court  to  examine  into  the  title.  Eeg.  v. 
Warwick,  e 

"  Writs  of  error  upon  any  judgment."  These  words  have  been 
held  to  extend  to  judgments  given  in  the  court  of  king's  bench 
upon  error  fi'om  the  common  pleas  at  Lancaster  :  i.  e.  to  judg- 
ments on  writs  of  error,  as  well  as  to  original  judgments,  Nesbit  v. 
Eishton.  /" ' 

"Prosecute  with  effect,"  see  Morris  v.  Matthews,  {/_"_ To  make 
and  prosecute  such  application"  is  satisfied  by  obtaining  a  nde 
nisi,  whatever  afterwards  becomes  of  the  rale,  Haworth  v.  Orm- 
erod./i 

a  Burn's  Justice,  Introduction,  xxiv.  b  15  East,  G39. 

c  4  Q.  B.  R.  810.  (Z  9  A.  &  E.  554. 

e8A.  &E.  919.  /9A.  &E.  431. 

J7  2Q.  B.E.  299. 
h  G  Q.  B.  E.  300. 

Note  6.— "Writ  of  error"  is  "a  commission  to  judges  of  a  superior  court,  by 
which  they  are  authorized  to  examine  the  record  upon  which  a  judgment  was 
given  in  an  inferior  court."  Bacon  Ab.  Title  "error;"  Jac.  L.  Diet,  "error;' 
Bouvier  Diet.  Title,  "  writ  of  error."  It  lies  upon  matter  of  Liw  arising  npon  the 
face  of  the  proceedings. 


CONSTRUCTION   OF   PHliASES   AND  WORDS.  277 

"  Office :"  A  clerk  to  the  justices  liokls  an  office,  thoiigli  not  a 
chartered  office,  see  Eeg.  v.  Mayor  of  Cannartheu.  a  ' 

"Proper  officers;"  see  R.  v.  Walsh.  A 

"Expenses  necessarily  incurred."  The  expense  of  bringing 
offenders  before  the  magistrates  (including  the  fees  of  the  justices' 
clerks)  incurred  in  carrying  into  eii'ect  the  stat.  5  tt  G  Wni.  4,  c. 
71,  are  -withui  these  words,     lleg.  v.  Ma}or  of  Ghnicester.  c 

Where  a  statute  gives  power  to  the  justices  to  require  any  per- 
son "  to  take  the  oaths,"  or  do  any  other  thing,  the  law,  by  ueces- 
saiy  implication,  gives  them  power  to  issue  their  precept  to  con- 
vene the  parties  ;  "  for  when  the  law  granteth  anything  to  any 
one,  tJiat  also  is  granted  without  which  the  thing  itself  caimot  be, 
and  it  is  against  the  office  of  the  justices,  and  tlie  authority  given 
them  by  the  law,  that  they  shall  go  and  seek  the  parties."  d 

Where  a  statute  gives  power  to  the  justices  of  the  peace,  "  to 
hear  and  determine  an  oll'ence  in  asunnnary  way,"  it  is  necessaiily 
imphcd  and  supposed,  as  a  part  of  natural  justice,  that  the  party 
be  first  cited  by  summons,  and  have  ojiportunity  to  be  heard,  and 
answer  for  himself,  e 

In  all  cases,  where  justices  may  "  take  examinations,"  or  other 
accusation  or  proof,  though  the  statute  doth  not  expressly  set 
down  that  it  shall  be  ?//>ou  oafli,  yet  it  shall  be  intended,  that  it 
shall  be  upon  oath.  /" 

Where  a  statute  appoints  a  conviction  to  be  "  on  the  oath  of 
one  witness,"  this  ought  not  to  bo  by  the  single  oath  of  the  in- 
former ;  for  if  the  same  person  shall  be  allowed  to  be  both  prose- 
cutor and  witness,  it  would  induce  profligate  persons  to  commit 
perjuiy  for  the  sake  of  the  reward,  (j 

Where  an  act  of  parliament  empowers  justices  of  the  peace  to 
"bind  a  person  over,"  or  to  cause  him  to  do  a  certain  thing,  and 
such  person  being  in  his  presence,  shall  refuse  to  be  bound  or  to  do 
such  thing  ;  a  power  of  commitment  is  said  to  be  implied,  and  that 
the  justice  may  commit  him  to  the  gaol,  to  remain  there  till  he 
shall  comply. 

Where  a  statute  limits  a  proceeding  against  a  party  to  "  six 
months  ;" — "  a  year,"  &c,,  after  the  act  done  ;  the  day  on  which  the 

rt  11  A.  &E.  9.  e  1  Hawk.  c.  C4,  s.  60. 

6  1A.  &E.  485.  /Daltc.115. 

c  5  Q.  B.  R.  86.  g2  Lord  Raj'inond,  15-io. 
d  12  Rep.  131. 

Note  7. — "  Office"  is  a  public  charge  or  employment,  and  the  term  seems  to 
comprehend  every  charge  or  emplojTnent  in  which  the  puhlic  are  interested." 
Matter  of  "Wood,  Hopk.  8,  2  Cow.  29  Note.  Attorneys  and  counsellors,  physicians, 
executors,  guardians,  «tc.,  are  not  public  officers.  20  John.  492.  See  People  v 
Hayes,  7  How.  Pr.  E.  248. 


278  CONSTEUCTION  OF  THEASES  AND  WOEDS. 

act  was  done  is  to  be  reckoned  in  the  six  months,  year,  <tc.  a  R. 
v.  Adderlej  ;  Castle  t.  Biuxlitt.  h  * 

"  Three  days  at  least,"  means  three  clear  days,  c 

"One  month  or  more"  is  a  fnll  month  reckoned  exclusively  of 
the  day  of  delivery  of  an  attorney's  bill,  Blunt,  Gent.  v.  Heslop.  d " 

"  In  or  about  a  year,"  see  Eeg.  v.  St.  Paul's  Covent  Garden,  c 

"  Twenty-one  days  of,  after,  or  from,  the  day  of  the  execution," 
must  be  reckoned  exclusively,  see  Williams  v.  Burgess  and  Wa'l- 
cott./' 

"  Parocliial  relief  or  other  alms  :"  Alms  applies  only  to  such  as 
are  parochial,  Eeg.  v.  The  Mayor  of  Lichfield,  g 

"  Committed  for  trial  -at  the  assizes,"  Eeg.  v.  Johnson.  Ji 

If  an  act  of  parhament  sa}- — an  oflender  "shall  be  punished  ac- 
cording to  his  demerit,"  these  words  import  only  that  he  shall  be 
punished  in  the  ordinary  course  of  justice,  by  mdictment.  i 

When  a  statute  gives  a  "  penalty  to  be  recovered  before  justices 
of  the  peace,"  but  proscribes  no  method  of  recovering  it,  the 
proper  method  is  by  indictment../ 

Where  a  power  is  given  "  to  inquire,  hear,  and  determine,"  it 
always  means  according  to  the  course  of  the  common  law,  by  a 
jury  ;  and  the  proceedings  must  in  such  case  be  by  indictment,  k 

"  Heard  and  determined."     See  E.  v.  Justices  of  AYarwickshu-e.  / 

"From  any  of  the  places  aforesaid."  To  be  read  with  reference 
to  the  immediate  antecedents  in  the  same  section.  WlUiams  v. 
Newton,  m 

"  Filed"  held  to  be  included  in  return  of  nan  est  inventus;  Hun- 
ter V.  Caldwell,  n 

Though  an  indictment  will  not  lie  for  an  offence  newly  created 
by- statute  where  another  method  of  prosecution  is  appomted,  yet 

a  2  Doiigl.  4G3.  h  10  A.  &  E.  7i0. 
6  3  T.  R.  G23.  i  a  4  lust.  171. 

c  4  B.  &  A.  522;  8  A.  &  E.  173;  12  A.    j  Salk.  600. 

&E,  472;  6M.  &  W.49.  A;  Per  Lord  Mansfield,  MS.  Eep.   cited, 
d  8  A.  &  E.  577.                                      Bac.  Abridgment,  tit.  Stat.  I,  2. 

e  7  Q.  B.  Eep.  232.  Z  2  A.  &  E.  719. 

/ 12  A.  &  E.  638.  m  14  M.  &  W.  747. 

^  2  Q.  B.  Pt.  693.  n  Easter  Term,  1847. 

Note  8.— "A  year,"  ordinarily  means  a  calendar  year,  but  the  statute  prescrib- 
ing a  year  as  the  time  during  -which  a  license  to  sell  liquors  shall  be  in  force 
means  a  license  year,  and  it  expires  on  the  day  named  in  the  statute.  The  statute 
year  is  365  days,  in  all  written  or  verbal  contracts;  a  half  year  is  182  days,  and  a 
quarter  of  a  year  91  days.    1  Eev.  Stat.  606,  §  3. 

Note  9. — A  month  in  any  statute,  contract,  or  iu.strumeut,  is  a  calendar  month, 
unless  otherwise  expressed.  1  Eev.  stat.  606,  §  4.  It  was  otherwise  at  common 
law,  except  in  the  case  of  bills  and  notes.  A  day  consists  of  twenty-four  hours, 
and  commences  and  ends  at  midnight.  Pulling  v.  Peojile,  8  Barb.  386.  And  a 
statute  forbidding  an  act  to  be  done  on  a  particular  day,  means  the  natural  day 
of  twenty-four  hours,  and  not  the  solar  da\-  from  sunrise  to  sunset,  id. 


CONSTRUCTION   OF  PIIltASES  AND  WORDS.  279 

if  the  statute  give  a  recovery  by  action  of  debt,  bill,  plaint,  inform- 
ation "  or  otherwise,"  it  authorizes  a  proceeding  by  -way  of  indict- 
ment, a 

Every  crime,  the  perpetrator  of  ■\vliicli  is,  by  any  statute,  or- 
dained to  have  judgment  of  "  life  or  member,"  is  a  felony  ;  although 
the  word/elony  be  not  contained  in  the  statute,  b 

But  an  oftence  shall  never  be  made  felony  by  the  construction 
of  any  obscure  or  ambiguous  words  of  a  statute  ;  and  therefore  if 
an  otl'ence  be  only  prohibited  "  under  pain  of  forfeitiug  body  autl 
goods,"  or  of  being  "  at  the  king's  ■svill  for  body,  lands,  and  goods," 
it  shall  amount  to  no  more  than  a  misdemeanor,  c 

When  a  statute  dn-ects  or  appoints  "  commitment  or  imprison- 
ment, but  limits  no  fcrmhixs  a  tjuo,  or  time  Avheii  it  shall  commence, 
it  shall  (for  the  benefit  of  him  upon  whom  it  is  intlictedj  be  imme- 
diately, Foggassa's  case,  and  Dr.  Bonham's  case.  (/ 

When  a  statute  appoints  "  imprisonment,"  but  limits  no  time, 
for  its  duration  ;  the  juisoner,  in  such  case,  must  remain  at  the 
discretion  of  the  court,  e 

Where  an  act  of  parliament  gives  power  to  the  justice  of  the 
peace,  to  take  order  in  aii}^  matter,  "  according  to  their  discretions," 
this  shall  be  understood  according  to  the  rules  of  reason,  law,  and 
justice,  and  not  governed  by  private  o])inion.  /' 

Where  the  amount  of  a  security  to  be  taken,  is  left  in  the  dis- 
crelion  of  any  court,  it  will  be  good  to  follow  precedents  of  former 
times  ;  for  ^^  disc  ret  io  est  discernere  per  ler/ein,  (jxad  sit  just  urn.'"  g 

"  No  capias  ad  satisfaciendum  shall  issue  against  a  person  "dis- 
charged under  an  insolvent  act;"  held  to  mean  that  a  plaintiff  who 
has  a  suit  against  the  insolvent  ought  not  to  issue  a  ca.  sa.  not 
that,  if  issued,  it  shall  be  absolutely  void,  Ewart  v.  Jones,  h 

"  Impound  or  otherwise  secure,"  see  Thomas  v.  Hanis,  i  what 
will  satisfy  these  words  witbin  11  Geo.  2,  c.  12. 

Where  an  offence  is  cognizable"  before  a  justice  out  of  sessions," 
and  the  time  and  manner  of  punishment  is  not  by  law  expressly 
limited,  he  may  commit  an  offender  to  the  house  of  correction, 
there  to  be  kept  to  hard  labor  until  the  next  general  or  quarter 
sessions,  or  until  discharged  by  due  course  of  Inv,-.  j 

It  may  be  laid  down  as  an  invarialjle  rule,  that  the  law  favors 
liberty,  so  that  in  the  construction  of  a  jienal  statute,  where  the 
interpretation  is  dubious,  that  sense  must  be  pursued,  c«'fe)'i.9^)f?r/- 
hus,  which  is  more  beneficial  to  the  subject,  or  the  party  suflermg. 
Thus,  where  an  act  directs  that  the  justices  shall  commit  an  offen- 
der to  prison  for  "twelve  months,"  the  justices  may  not  alter  the 

n  2  Hawk.  c.  25,  s.  4.  /"oEep.   100;  8  Iloweirs  State   Trials, 

b  1  lust.  391;  2  Inst.  434;  3  Inst.  91.     55  notis. 
c  1  Inst.   391;  3  Inst.  145;  Hob.  270,  1   <;  2  Inst.  50,  298. 
Hawk.  c.  40,  s.  2.  'h  14  M.  &  W.  774. 

d  Plow.  Com.  17b.,  and  8  Eep.  119.       i  1  Scott's  N.  C.  525. 
e  Dalt.  410.  j  17  Geo.  2,  c.  5,  s.  32. 


280  CONSTRUCTION  OF  PHRASES  AND  WORDS. 

words,  and  commit  liim  for  "  a  3'ear ;"  for  in  tins  respect  twelve 
months  and  one  3-ear  are  not  the  same  ;  bnt  the  months  must  be 
c'omputcid  at  twenty-eight  days  to  the  month,  and  not  as  calendar 
months,  nnless  it  be  so  expressed  in  the  act. 

"  Of"  a  place,  imports  dwelling  ;  and  is  ordinarily,  taken  to  mean 
that  the  party  dwells  at  the  place  named  ;  but  in  Eeg.  v.  Toke,  a 
Littledale,  J.,  said,  "  I  have  great  doubts,  whether  it  is  sufficiently 
averred  that  he  dwells  there." 

"  Expenses,"  this  expression  means  actual  disbursements,  not 
allowances  for  loss  of  time,  Jones  v.  Mayor  of  Carmarthen,  h 

"  Payment"  is  not  a  technical  word  ;  it  has  been  imported  into 
law  j)roceedings  from  the  exchange  and  not  from  law  treatises.  It 
docs  not  necessarily  mean  payment  in  satisfaction  and  discharge, 
l)ut  may  be  used  in  a  popular  sense,  v  '" 

Acts  of  parHament  that  speak  of  lines  or  ransoms  "  at  the  king's 
pleasure,"  are  now  always  to  be  understood  of  the  kmg  in  his 
courts,  by  his  justices,  d 

All  act  inflicting  a  penalty  for  "  a  second  offence,"  the  indict- 
ment must  recite  the  reord  of  the  first  conviction  ;  and  uj)on  the 
evidence,  the  record  of  the  first  conviction  must  be  proved,  e 

In  all  cases  where  a  justice  is  recjuired  by  an  act  of  parliament, 
"to  issue  a  warrant  of  distress  for  levying  of  any  penalty  inflicted, 
or  any  sum  of  money  directed  to  be  paid  by  such  act ;"  it  shall  be 
lawful  for  such  justice  granting  the  warrant  therein,  to  order  and 
direct  the  goods  distrained  to  be  sold  within  a  certain  time  to  be 
limited  in  such  warrant,  so  as  such  time  be  not  less  than  four  days, 
nor  more  than  eight  days,  unless  such  penalty  or  sum  of  money, 
together  with  reasonable  charges  of  taking  and  keeping  the  distress, 
be  sooner  paid.  /' 

"By  one  broker  or  more."  The  use  of  the  singular  number  is 
not  sufficient  to  get  rid  of  a  positive  provision  for  two  appraisers 
in  a  prior  statute,  Allen  v.  Flicker  and  Another,  r/ 

"  Final  decree  :"  See  Jones  v.  Reynolds,  h 

"  Undue  means  :"  Such  are  held  to  be : —Arbitrators  carrying 
on  examinations  apart ;  whereas  they  ought  to  have  been  con- 

a  8  A.  &  E.  232.  e  1  Hale,  P.  C.  G8C,. 

&8M.  &W.605.  /  27  Geo.  2,  c.  20. 

c  Maitland  v.  The  Duke  of  Argylc,  g  10  A.  &  E.  640. 

CM.  &G.40.  hi  A.&E.   384. 
d  1  Hale,  375, 

Note  10. — It  is  otherwise  heldiu  this  state.  "  Payment,"  in  its  legal  import, 
means  the  full  satisfaction  of  a  debt  by  money,  and  it  is  only  when  the  words 
used  in  connection  with  it  plainly  manifest  a  different  intention,  that  the  legal 
import  of  the  term  can  be  rejected.  Manice  v.  Hudson  R.  llailroad  Co.,  3  Duer 
441. 


CONSTEUCTION   OF  THRASES    AND   WORDS.  281 

ducted  by  the  arbritrators  and  umpire  jointly  in  presence  of  the 
parties,  lie  Plows  and  Middleton.  a 

"Having  upon  view  found."     11.  v.  Milverton.  h 

"  We  having  viewed,  and,  it  appearing  to  us  :"  do  not  necessa- 
rily mean,  that  an  order  was  made  upon  the  view  of  the  said  jus- 
tices, K.  V.  Manpiis  of  Downshirc  ;c  licg.  v.  Jones.  <l 

"  Have  adjudginl :"  is  the  same  thing  as  saying  that  they  ad- 
judge. The  words  mean  that  the  justices  adjudge  at  that  moment, 
11.  v.  Moulden  ;  c  11.  v.  The  Inhabitants  of  St.  Nicholas,  Leicester./ 

"  Final  port,"  what  held,  Moore  v.  Taylor.  <j 

"  No  person  shall  maintain  any  action  for,  or  recover  any  sum 
of  money  for  spirituous  litjuors,  unless  contra(!ted  for  at  onetime, 
to  the  amount  of  2().v."  Where  an  una])propriated  payment  was 
made  by  the  defendant,  the  plaintilf  applied  the  payment  to  the 
items  in  his  account  charged  for  the  spirits  ;  and  sued  for  the  resi- 
due. This  was  held  no  "  action  maintained"  or  "  recovery"  for 
the  spirits  within  the  terms  of  the  act,  Philpott  v.  Jones,  h 

"  Artificers,  calico-printers,  handicraftsmen,  miners,  colliers,  pit- 
men, potters,  laborers,  and  others."  Of  these  words  in  stat.  0 
Geo.  3,  c.  2o,  for  "  better  regulating  ap]u-entices  and  persons  work- 
ing under  contract,"  Lord  JDenman  said  :  "  Large  as  these  words 
undoubtedly  are,  '  or  other  persons  who  shall  contract  with  any 
persons  whomsoever;'" — when  w^e  apply  to  them  the  ordinary 
rules  for  construing  acts  of  parliament  laid  down  by  Dwanis  on 
statutes,  part  2,  and  acted  upon  in  all  times,  we  find  ourselves 
compelled  to  say,  that  the  '  other  persons'  are  no  ,  all  persons 
whatever  who  enter  into  engagements  to  serve  for  stated  periods, 
but  persons  only  of  the  same  description  as  those  before  enumer- 
ated, A  justice,  therefore,  has  no  summary  jurisdiction  over  a 
domestic  servant,"  Kitchen  v.  Shaw,  i 

"  Appeal  against  overseers'  accounts  to  the  next  sessions :  " 
means  the  next  practicable  sessions  after  the  account  has  been  de- 
posited with  the  churchwardens  and  overseers  for  public  inspec- 
tion, Eeg.  V.  W^atts../ 

"For  the  time  being  ;  "  see  8  Taunt.  G91,  for  the  meaning  of 
these  words  in  the  case  of  parish  officers,  and  9  A.  <.t  E.  356,  in 
the  case  of  a  company  ;  that  the  right  to  sue,  did  not  remain  in 
the  officers  after  they  had  quitted  office. 

"  Owner  for  the  time  being."  By  statute,  an  action  against  a 
shareholder  for  calls,  Avas  given  against  the  "  owner  for  the  time 
being."  Shares  were  sold  after  a  call  was  made,  but  before  it  was 
payable.     The  court  of  Queen's  bench  held  in  the  Birmingham 

o  G  Q.  B.  E.  852.  / 3  A.  &  E.  85. 

6  5  A.  &  E.  811.  3  1  A.  &  E.  25. 

c  4  A.  &  E.  698.  h2A.&E.  U. 

d  12  A.  &  E.  686.  i  6  A.  &  E.  729. 

e  8  B.  &  C.  81.  j  7  A.  &  E.  461, 

36 


282  CONSTKUCTION  OF   niExVSES  AND  WORDS. 

and  Aj'lesbuiy  company  \.  Tliomjoson,  a  that  tlie  purchaser  was 
not  an  owner  for  the  time  being.  The  connnon  pleas  have  held, 
that  until  the  deed  is  enrolled  and  entered,  the  company  may  com- 
pel the  sellers  to  pay  all  the  future  calls.  The  London  and  Brigh- 
ton railway  company  v.  Fairclough.  b 

"  Neglect : "  What  omission  is  equivalent  to  ;  see  King  v.  Bur- 
rell.  c 

"Treasurer  for  the  time  being  :  "  means  the  officer  and  his  suc- 
cessors, d 

"Gross  negligence,'"  a  misconstruction  of  a  standing  order, 
doubtful  in  its  terms,  is  not  such  negligence  as  will  disentitle  a 
parliamentary  agent  to  a  remuneration  for  his  labour,  e 

"  Calls  upon  railway  shares : "  All  calls  upon  railway  shares, 
must  be  made  with  due  observance  of  the  requisites  prescribed  by 
the  statute  under  which  the  com]:)any  is  formed.  For  what  was 
deemed  a  sufficient  compliance  with  the  act  in  that  particular  case  ; 
see   the  London  and  Brigliton  Eailway  Company  v.  Fairclough.  /' 

"Levied  and  collected :  "  in  31  Geo.  1,  c.  15,  s.  3,  the  sherifi'  is 
'entitled  to  poundage  on  the  amount  which  comes  to  the  hands  of 
the  Crown  by  means  of  the  process.  Where  8007.  was  levied,  and 
the  Crown  accepted  500/.  in  satisfaction,  the  sheriff  was  entitled 
to  poundage  on  500/.  only,  E.  v.  Robinson.  <j 

"  By  reason  and  colour  of  his  office : "  For  the  case  of  a  sheriff 
taking  more  than  the  limited  poundage  on  an  eligit.  See  Nash  v. 
Allen.  7i" 

"Executing :  "  W^rits  by  sheriff,  i  See  Drew  v.  Lainson.  Colls 
V.  Coates. 

"  Depending  suits  :"  Unsatisfied  judgments  are  pending  suits, 
Howell  V.  Boven.j 

"Satisfaction  to  the  creditor  "  under  the  Insolvent  Act,  means 
pecuniary  satisfaction,  Kitching  v.  Croft,  k 

"Insolvency  "  is  an  inabihty  in  A.  to  pay  his  just  debts,  and 
does  not  import  that  he  should  have  been  discharged  under  the 
Insolvent  Debtors'  Act ;  though  the  context  may  explain  the  words 
the  other  way  :  as  in  the  Savings  Bank  Act,  3  &  4  Wm.  4,  c.  14, 
where  the  words  are  "or  become  bankrupts  or  insolvents."  V' 

a  2  Eailway  Cas.  G68.  g  C,  M.  &,  K.  334. 

&2M.  &G.  674.  ■/i,4Q.B.  K.  784. 

c  12  A.  &  E,  460.  ill  A.  &  E.  537,  826. 

d  4  Q.  B.  K.  422.  j  C.  M.  &  K.  334. 

e4M.&G.  124.  /c  e  12  A.&  E.  586. 

/  3  Scott,  N.  C.  68.  I  C.  M.  &  E. 

Note  11.— Acts  done  colore  officii,  are  the  acts  of  au  officer,  which  are  of  such  a 
nature,  that  his  office  gives  him  no  authority  to  do  them.  Seely  v.  Birdsall,  15 
John  267.     People  v.  Schuyler,  4  N.  Y.  187. 

Note  12. — A  man  is  insolvent  when  his  debts  cannot  be  collected  oxit  of  his 
property  by  legal  process.     Herrick  v.Borst,  4  Hill  654.    Insolvency  and  bank- 


CO.NSTIIUCTIOX   OF    I'FIKASES   AND   WORDS.  283 

"  Making  or  tendering  satisfaction."  These  words  do  not  im- 
ply that  it  is  to  bo  done  before  tlie  miscliicf,  but  that  they  shall 
not  do  the  act,  without  being  liable  to  niuke  compensation,  Lister 
V.  Hoxley  and  Another,  a 

"  To  the  owners  or  promoters,"  includes  lessees.  /> 

"  For  anything  done  or  omitted  to  bo  done  in  pursuance  of  the 
Act  or  in  the  execution  of  the  power  or  authorities  given  by  it." 
See  Palmer  v.  The  Grand  Junction  Kailway  Company  ;r!  8niith  v. 
Shaw;(/  The  Lancaster  Canal  Com])any  v.  Parneby;e  Carpue  v. 
The  London  and  Brighton  llailway  Company./* 

"  Place  of  abode."  Under  the  2-1  Geo.  2  c.  41,  s,  1,  requirhig 
a  notice  of  action  to  justices  to  l)o  indorsed  with  the  name  and 
place  of  abode  of  the  attorney,  the  place  of  business  was  held  a 
sufficient  place  of  the  attorney's  abode,  in  Roberts  v.  Williams,  rj 
(sed  quaere.) 

"  Afore  execution  had  "  within  stat.  3  Hen.  7,  c.  10,  means  Ijefore 
obtaining  the  fniits  of  execution ;  satisfaction  of  the  judgment, 
Newlands  v.  Holmes,  li 

"To  pay  the  debt  of  another:"  contemplates  only  promises 
made  to  the  persons  to  whom  another  is  liable;  to  the  creditor 
and  not  to  the  debtor  himself,  Eastwood  v.  Kenyon.  i 

"  Undertakuig  :"  For  the  import  of  this  term,  see  Pontet  v.  The 
Basingstoke  Canal  Company/ ;  Myatt  v.  The  St.  Helen's  Piail- 
way  Company,  h  * 

"Everybody  politic,  or  corporate,  and  person  or  persons." 
These  words  extend  to  jiarishes,  though  they  are  neither  bodies 
corporate  or  politic,  or  persons.  Rex.  v.  Inhabitants  of  Barton  J. 

"  Any  ofifensivo  trade:"     To  use  a  house   as   a  private  limatic 

a7A.  &E.  124.  f7C.,  M.  &K. 

h  Id.  h  4  Q.  B.  E.  805. 

c  i  4  M.  &  W.  749.  i  11  A.  &  E.  438. 

tZ  10  B.  &  0.  27.  j  ;?  New  Cas.  433. 

e  11  A.  &  E.  230.  /.:  2  Q.  B.  R.  364,  N.  Y.  Code. 

/  5  Q.  B.  R.  757.  I  11  A.  &  E.  343. 

•  See  definition  in  New  York  Code. 

ruptcy  are  not  synonymous  terms.  Mere  insolvency  never  makes  one  a  bank- 
rupt-without the  concurrence  of  some  act  tending  to  the  injury  of  his  creditors. 
Though  insolvency  is  undoubtedly  the  larger  term,  and  may  inchide  bank- 
ruptcy there  is  no  necessary  connection  between  the  two.  Sackett  v.  Andross,  5 
Hill  344.  Insolvencj',  in  the  abstract,  means  a  general  inability  to  pay  ones 
debts  ;  an  inability  to  fulfil  ones  obligations  according  to  his  undertaking  ;  a 
general  inability  to  answer  iu  the  course  of  business,  the  liabilities  existing  and 
capable  of  being  enforced.  Not  an  absolute  inability  to  pay  ones  debts  at  some 
future  time,  upon  a  settlement  and  winding  up  of  all  a  trader's  concerns  ;  but  as 
not  being  in  a  condition  to  pay  ones  debts  in  the  ordinary  course,  as  jiersons  car- 
rying on  a  trade  usually  do.  Ferry  v.  Bank  of  Central  N.  Y.,  13  HowPr.  W. 
451.     Brower  v.  Harbeck,  9  N.  Y.  594. 


281         CONSTRUCTION  OF  THRASES  AND  WORDS. 

asylum,  was  held  not  to  be  a  trade  witliiii   tliese  words,  Doe  dem. 
Wetherell  v.  Bird.  « 

"  Use  or  exercise  auy  trade  or  business  whatsoever :"  It  was 
held,  that  keeping  a  school  was  a  breach  of  convenant  in  this  case, 
Doe  dem.  Bish  v.  Keeling,  h 

"  Accepted  the  office  :"  The  term  accepted  office,  has  .a  col- 
loquial as  well  as  a  techincal  meaning,  Eeg.  v.  Slatter.  Whether 
he  do  accept  or  not,  will  be  a  legal  inference  from  certain  facts,  c 

"  Introduced  and  estabhshed  :"  For  the  distinctions  between 
them,  see  Gibson  v.  Kirk,  d 

"  Wilfully  waste  or  misapply  :"  WilfuUy  is  connected  with  mis- 
apply, as  well  as  with  waste.  The  Avord  "  misapply,"  does  not  of 
itseli  import  wastefulness,  Carpenter  v.  Mason,  e 

"  Incumbrance  atiecting  the  estate  :"  A  sequestration  at  the 
suit  of  a  creditor  under  which  possession  has  been  duly  taken 
and  the  profits  recovered,  was  held  an  incumbrance,  &c.,  within 
the  game  qualification  act,  18  Geo.  2,  c.  20,  s.  1,  Pack  v.  Tarpley, 
Clerk../" 

"  Witness  C.  B.,  E.  B.,  A.  B."  Held  b}-  a  majority  of  the  judges, 
not  to  be  a  good  execution  of  a  power,  which  required  a  will  to  be 
signed,  sealed,  and  published  in  the  presence  of,  and  attested  by 
witnesses,  Doe  dem.  Spilsby  v.  Burdett,  r/ 

"  Expenses  incurred  by  the  parochial  fund :"  A  suit  of  clothes 
furnished  to  a  poor  boy  on  his  being  bound  apprentice,  was  held 
not  to  be  within  these  words  of  the  statute,  so  as  to  cause  the 
indentm'e  to  require  the  approval  of  two  justices,  Keg.  v.  The 
Inhabitants  of  Quainton.  h 

"Placing  out  or  f)utting  away,"  Pteg.  v.  The  Inhabitants  of 
Wainfleet.  i 

"  Placed,  elected,  or  chosen."    See  Beg.  v.  Humphrey.,/ 

"Inhabitants  and  occupiers."  Eeg.  v.  Inhabitants  of  Exmin- 
ister. k 

"Hereditaments."  See  Eeg.  v.  Capell. ?'^ 

"Feoffments  of  lands  or  other  hereditaments  in  England,  "not 
otherwise  charged  1 1.  15.s."  A  feofiinent  for  the  consideration  of 
love  and  natural  afi^ection  and  10s.,  does  not  requh'e  two  stamjDS 
of  1  ?.  15.S.  each.     Per  Lord  Denman  :     "  How  can  you  make  an 

rt2A.  &E.  161.  r/ 9  A.  ct  E.  93G. 

6  1M.  &S.  93.  AIA.&E.  133. 

c  11  A.  &  E.  ni  A.  &  E.  656. 

dlQ.B.  R.  855.  j  10  A.  &  E.  335. 

e  12  A.  &  E.  630.  'k  12  A.  &  E.  94. 

/  9  A.  &  E.  468.  n2  A.  &  E.  382. 

Note  13. — Hereditaments  is  included  in  the  definition  of  real  proj^erty.  Code 
N.  Y.  §  462.  It  is  more  comprehensive  in  meaning  than  "  land,"  or  "tenements," 
and  includes  whatever  may  be  inherited,  coriioreal,  or  incorporeal.  Canfield  v. 
Ford,  28  Barb.  336. 


CONSTRUCTION   OF    I'HUABES   .VND   WOEDS.  2Sii 

id  valorem  charge  on  naturul  love  aucl  affection?"  Doe  dcm. 
Wheeler  v.  Wheeler,  a 

"  Allowance"  by  a  landlord  for  expenses  or  trouble,  does  not 
operate  as  a  defalcation  of  the  rent ;  but  is  collateral,  Davies  v 
Stacey  and  Parry,  h 

Upon  an  indictment  or  other  criminal  prosecution,  no  "  damages" 
can  l)e  given  to  the  party  giieved  ;  but  it  is  every  day's  practice 
ill  the  Court  of  King's  Bench,  to  induce  defendants  to  make  satis- 
faction to  the  prosecutors,  by  intimating  an  inclination,  on  that 
account,  to  mitigate  the  fine  due  to  the  King,  c 

Where  a  statute  generally  prohibits  any  thing,  the  defendant 
may  be  prosecuted  both  by  the  king  and  the  paity  grieved  :  for 
every  contempt  of  a  statute  is  indictable  where  no  other  punish- 
ment is  limited ;  and  the  party  gi'ieved  shall  have  his  action  for 
his  private  rehef.  d  " 

"  Miscellaneous  words  and  sentences."  The  succeeding  phrases 
it  is  impossible  to  reduce  to  any  general  heads ;  forming,  as  they 
obviously  do,  detached  portions  of  sentences  of  a  very  miscellane- 
ous nature. 

"  Absence  :"  See  Reg.  v.  Perkin.  e 

The  relative  word  "  aforesaid,"  often  refers  and  restricts,  a 
clause,  to  the  precedent  purview.  /"  Being  a  collective  word,  it  may 
have  reference,  according  to  the  intent,  to  two  or  three  several 
matters,  as  to  "  every  term  named  in  an  indenture  ;"  f/  unless 
"  where  it  is  impossible  it  can  extend  to  other  things,  held  in  dis- 
tinct rights  and  under  difterent  titles."  It 

The  conjunction  "  and"  couples  sentences  together,  so  that 
former  adverbs  refer  to  all  the  verbs  subsequent ;  in  this  way  pre- 
venting repetition  and  tautolog}'.  "  And  then  and  there  gave  the 
said  Edward  a  mortal  wound ;"  on  an  objection  that  it  was  not 
stated  that  he  gave  it  "  feloniously,  and  of  malice  aforethought," 
the  allegation  was  held  sufficient,  these  words  havmg  been  before 
mentioned,  i 

But  "  and"  is  relative  as  well  as  copulative.  "Where  R.  devised 
100  sheep  and  10  bullocks,  and  10/.  quarterl}-,  the  second  "  and" 
in  the  sentence  disjoins  and  severs  the  rent  from  the  sheep  and 

a2  A.  &E.  30.  /"lOKep.  138;  "  Case  on  Sewers . " 

b  12  A.  &  E.  510.  g  10  Eep.  107. 

c  2  Hawk.  c.  2o,  s.  3.  h  8  Rep.  47. 

d  2  Inst.  1(!3;  1  Hawk.  e.  22,  s.  5.  14  Eep.  40;  "Case  of  Appeals  and  In- 

e  7  Q.  B.  E.  163.  dictments." 

Note  14. — A  like  provision  has  been  incorporated  into  the  Eevised  Statutes  of 
this  state.  2  Eev,  Stat.  G96,  §54,  (39),  as  follows:  "Where  the  performance  ot 
any  act  is  prohibited  by  any  statute,  and  no  penalty  for  the  violation  of  such 
statute  is  imposed,  either  in  the  same  section  containing  such  prohibition,  or  in 
any  other  section  of  the  statute,  the  doing  of  such  act  shall  be  deemed  a  misde- 
meanor." 


28G  CONSTRUCTION  OF  THRASES  AND  WORDS. 

bullocks  ;  Sir  Richard  Pexliall's  case,  a  As  in  a  case  in  tlie  year 
books,  where  two  were  bound  to  stand  to  the  abitrament  of  I.  S. 
de  onDiiU'  adionib''  personalihus  scctis  et  qucrelis;  personalihns  shall 
be  referred  to  all;  but  if  the  words  were  "  c/e  omnibus  adionibua 
personalibus,  et  secti.s  et  querelis,''  it  shall  be  otherwise  :  for  there 
the  last  et  disjoins  qucrelis  from  the  whole  first  jj art  of  the  sentence, 
and  shall  be  taken  generally  without  any  relerence  to  persorinH- 
bus.  b 

"  ^\jid"  is  not  always  to  be  taken  conjunctively.  It  is  sometimes, 
in  the  fair  and  rational  construction  of  a  statute,  to  be  read  as  if 
it  were  "  or,"  and  taken  disjunctively  and  distributively.  In  Cres- 
wick  V.  Eokesby  c  and  others,  Dodderidge,  J.,  said  :  "  When  the 
seuse  is  the  same  they  are  all  one,  and  the  words  conjunctiA^e  and 
disjunctive  are  to  be  taken  proniiscue.''  Thus,  the  conjunctive  re- 
cited in  a  declaration,  instead  of  the  disjunctive,  where  the  recital 
answers  the  sense  of  the  statute,  is  sufficient ;  for  the  statute,  not- 
withstandmg  the  variance,  is  truly  recited.  So  it  is  laid  down  in 
2  Vent.  215.  Nor  according  to  the  case  of  Halt  v.  Gaven,  (Cro. 
Eliz.  307,)  will  the  use  of  the  word  "and,"  instead  of  "  or," — hurt ; 
if  the  word  "  or"  in  the  statute  has  always  been  construed  "  and." 

But  where  the  statute  uses  the  disjunctive  "  or,"  in  Avliich  sense 
it  is  to  be  understood,  and  the  plaintiff  in  his  declaration  mis-re- 
cites the  statute  and  uses  the  word  "  and  ;"  the  recital  in  the  declar- 
ation, not  answeiing  the  sense  of  the  statute,  all  the  authorities 
agi-ee  that  the  declaration  is  bad.  Thus,  by  stat.  28  Eliz.  c.  4, 
sheriffs  are  liable  to  a  penalty  for  taking  more  than  a  certain  sum 
on  executions  "  upon  the  body,  lands,  goods,  or  chattels."  A  decla- 
ration on  this  act,  in  reciting  the  statute,  stated  it  thus  :  "  body, 
lands,  goods,  and  chattels,"  and  this  was  held  to  be  a  fatal  vari- 
ance. In  aiTest  of  judgment.  Lord  Kenyon  said  : — "  The  natural 
and  obvious  sense  of  the  word,  as  mis-recited  in  the  declaration, 
is  to  confine  the  provision  of  the  statute  to  executions  against  all ; 
but  that  is  materially  different  from  the  words  in  the  statute, 
which  speaks  distributively  of  writs  against  either  of  the  objects 
of  execution,  and  which  infiicts  a  penalty  on  the  sheriff" for  taking 
more  than  is  allowed  for  executuig  any  execution  against  either 
the  body,  lands,  or  chattels,"  &c.  d 

"Annual  net  value  :" — See  R.  v.  Inhabitants  of  Wistow.  e 

"AH.-" — " qui  omne  dicit,  nihil,  excludit ;  generaJe  dictum  " r/en- 
eraliter  est  inteUigendum."  Therefore,  where  the  Stat,  of  Merton, 
cap.  2,  says  omnes  viduce,  and  there  are  five  kinds  of  dower,  that 
chapter  does  extend  to  them  all./ 

a  8  Rep.  85. 
{»  9  E.  4,  43  b. 

c  2  Bulstr.  47;  2  Hawk.  c.  25,  s.  102.     Waterhouse  v.  Kean,  B.  &  C.  200. 
d  E.  V.  Marsack,  G  T.  R.  771;  R.  v.  Bland,  5  T.  R.  370. 
e  5  A.  &  E.  2G1. 
/  2  Inst.  81. 


CONSTRUCTION   OF    TIIRASES  AND   WORDS.  287 

"Any  thing  in  this  uet  to  the  contrary  notwithstanding,"  is 
equivalent  to  saying  thai;  the  act  shall  be  no  impediment  to  the 
measure,  and  precisely  corresponds  to  the  words  in  the  second 
saving  of  the  Stat,  of  Uses,  27  Hen.  8,  c.  10,  as  if  this  act  had 
not  been  made."     Cheinie's  case  ;  Sir  Thomas  Cecil's  case,  a 

When  a  statute  speaks  of  an  "  assignee,"  it  is  to  be  intended  of 
such  complete  assignee,  as  has  all  the  ceremonies  and  incidents 
requisite  by  the  law  to  such  character ;  not  taking  away  any  form 
or  circumstance  which  the  law  requires.  Therefore,  assignee  by 
line  shall  not,  under  the  32  Hen.  8,  c.  3-1,  take  advantage  of  a  con- 
dition, without  attornment,  h 

"  At  the  time  of  the  making "  expounded  to  mean  the  same 
instant  of  themakmgf.  "  Forfeiture  comes  at  the  same  instant 
that  he  (hcs."f^ 

"  Beneficial"  and  prolita])le  are  not  convertible  terms.  A  party 
holding  a  property,  which  is  rateable,  is  not  discharged,  because 
he  does  it  at  a  loss,  11.  v.  Perrott  c ;  lleg.  v.  Vange./'  And  for 
the  distinction  between  profitable  and  beneficial,  see  Governors  of 
Boston  Poor  v.  Wait.  <j 

"  Boats,  vessels,  and  other  craft:"  These  words  extend  to  steam 
boats,  Tisdell  v.  Combe,  h 

"  Convicted"  has  been  often,  according  to  many  cases  in  the 
books,  taken  for  attainted,  and  therefore  extends  to  a  judgment 
upon  demurrer  i  ;  which  in  Foster's  case  was  held  to  be  a  "  con- 
viction" within  the  stat.  23  Eliz. 

A  "  college,"  to  be  such,  in  more  than  vulgar  reputation,  must 
have  the  "countenance  of  a  legal  commencement;"  a  lawful  erec- 
tion and  foundation.  And  it  sliould  seem  that  no  one  can  found 
or  incorporate  a  college  within  this  realm,  or  assign  or  license  others 
to  assigu  temporal  livings  to  it,  but  only  the  king  himself.  And 
reputative  colleges  which  had  no  lawful  foundation,  were  held  not 
to  be  given  to  the  king  by  the  stat.  1  Edw.  6,  unless  they  had  the 
countenance  of  the  king's  letters  patent,  or  might  have  had  a  legal 
commencement  but  for  some  error  or  imperfection  in  the  penning 
or  proceedings./ 

"  Demised:  "  may  well  be  taken  for  left  to  another  or  gi-anted 
over  to  another ;  and  whether  the  gi'ant  be  by  act  in  deed  or  by 
act  in  law.  k  ^'" 

aTEep.  p.  20.  r/5A.  &E.  8. 

b  MiiUory's  case,  5  Kep.  112.  'h  7  A.  &  E.  788. 

c  Plowd.  188.  i  Dr.  Foster's  case,  11  Eep.  59. 

(/  Id.  258.  j  Adams  and  Lambert's   case,  4  Eep. 

e  5  T.  E.  393.  108. 

/  4  Q.  B.  E.  255.  k  Plowd.  103. 

Note  15. — The  tcclinical  meaning  of  demise,  is  a  lease  for  a  term  of  years. 
Bouvier,  Pit.  445.  Voorhees  and  wife  v.  Presbj'terian  Church  of  Amsterdam,  5 
How  Pr.  E  71 


288  CONSTEUCTION  OF  THKASES  AND  WOEDS. 

An  action  is  not  properly  said  to  be  "depending"  in  any  court, 
till  the  process  is  retm-ned  ;  but  after  an  original  writ  is  returned, 
then,  it  is  said,  it  shall  be  considered  pending,  from  the  day  of 
the  teste  of  the  writ,  a  The  taxation  of  an  attorney's  bill,  con- 
templated by  the  statute  2  Geo.  2,  c.  23,  s.  23,  was  evidently  a 
taxation  made  upon  the  apphcation  of  the  client,  before  action 
brought ;  and  where  a  judge's  order  for  taxing  it  was  not  obtained 
till  after,  the  courts  of  king's  bench  and  connnon  j)leas  formerly 
both  held,  that  the  defendant  was  not  entitled  to  the  costs  of  taxa- 
tion, though  more  than  one-sixth  had  been  taken  off  by  the  master  ; 
yet  the  words  of  the  section  authorizing  the  court  or  judge  to 
refer  a  bill  to  taxation  are,  "  although  no  action  or  suit  shall  be 
then  depending. "  h 

Where  the  moiety  of  a  penalty  is  given  by  statute  to  the  trea- 
surer of  a  "county,  riding,  or  division,"  the  word  "  division"  does 
not  apply  to  small  districts,  such  as  the  Cinque  Ports  of  Seaford 
in  Sussex,  but  must  be  construed  with  reference  to  county  and 
riding,  and  means  something  analogous  to  them,  c 

Where  the  authority  emanates  from  a  superior,  "  empowered  " 
is  imperative.  In  the  case  of  a  public  duty  such  words  not  only 
authorize,  they  compel  the  exercise  of  the  power,  and  performance 
of  the  duty,  d 

A  "fit"  person  to  execute  an  office,  is  he, — "qui  mtlius  et  sciai 
et  possif,  qfficium  illud  irdendere."  "  This  word  idoneus,"  says  Lord 
Coke,  "  is  oftentimes  in  law  attributed  to  those  who  have  any  of- 
fice or  function  ;  and  he  is  said  in  law  to  be  idoneus,  apt  and  fit  to 
execute  his  office,  who  has  three  thmgs,— honesty,  knowledge  and 
ability  :  honesty  to  execute  it  truly,  without  malice,  affection,  or 
partiality ;  knowledge  to  know  what  he  ought  duly  to  do  ;  and 
ability,  as  well  in  estate  as  in  body,  that  he  may  intend  and  exe-' 
cute  his  office,  when  need  is,  diligently,  and  not  for  impotency  or 
poverty  neglect  it."  If  a  coroner  be  "  senio  confradus,  aid  morh) 
paralysis  perciissus,  aid  terras  et  tenementa  in  eodem  comitatu  iion 
hahet,  etc.,"  so  as  to  be  "  miiius  idoneus  ad  officbim  illud  exequen- 
dum,  &c."  it  is  a  good  cause  to  remove  him. 

"  Fixtures  and  fixed  furniture  : " — See  Birch,  Administrator  of 
Vincent  v.  Dawson,  e  ^^ 

a  5  Kep.  47,  48,  Cases  of  Pardons  ;  7  Eep.  30.     "'Discontiiuiuuce  of  process  by 
death  of  the  Queen." 
h  4  King.  5G1  ;  8  B.  &  C.  635  ;  9  B.  &  C.  755. 
c  Evans  q.  t.  v.  Stephens,  4  T.  R.  224,  459.       e  2  A.  &  E.  37. 
d  5  T.  R.  538  ;  5  T.  R.  636  ;  7  A.  &  E.  925.  R.  v.  St.  Saviour's,  Southwark. 

Note  1G.— Fixtures  are  chattels  or  articles  of  a  personal  value  which  have 
been  affixed  to  the  land.  They  must  be  permanently,  habitually  attached  to  it, 
or,  must  be  component  part  of  some  erection,  structure  or  machine  attached  to 
the  freehold,  without  which,  the  erection,  structure  or  machine  would  be  imper- 
fect and  incomplete.  Walker  v.  Sherman,  20  Wend,  656,  Vanderpool  v.  Van 
Allen,  10  Barb.  162. 


CONSTRUCTION   OF  PHRASES  AND  WORDS.  289 

"  Forthwith :  " — Exchides  intervention  of  dehay.  Ecg.  v.  Eo- 
binson.  a  " 

"From  hencefortli,"  "  f/e  caVtro,"  does  not  necessarily  imply  a 
new  law ;  as  may  be  seen  upon  the  doubts  arismg  on  the  Stat. 
Merton,  cap.  2,  />o.s7,  chaj).  11. 

"  Goods,  mat(!nals,  and  i^rovisions  for  the  use  of  any  work- 
house : " — See  Barber  v.  ^^'atts.  h 

"  Goods,  wares,  and  merchandizes  :  " — Shares  in  a  joint  stock 
banking  company,  are  not  such  within  sec.  17  of  the  Statute  of 
Frauds,  Humble  v.  Mitchell,  c 

In  Butler  and  ])akcr's  case,  as  to  the  "power  of  a  devisor  to 
devise  a  manor,"  of  divers  notable  reasons  for  the  judgment,  one 
Avas  on  the  word  "having."  "  If  it  be  asked  who  can  give  and 
dispose  by  liis  last  will  m  writing,  <fcc.?  the  makers  of  the  act  (34 
Hen.  8,)  answer,  everii  jwrson  liaving  manors  ;  so  that  it  is  not  said 
every  person  generally,  but  every  person  liaving,  «fcc.  And  this 
word  'having'  imports  two  things  ;  .sciliccf,  ownersliip,  and  time  of 
ownership,  for  lui  ought  to  have  the  laud  at  the  time  of  the  mak- 
ing of  his  will,  and  the  statute  gives  such  person  having,  etc.. 
Authority  to  devise,  ttc.  And  Wray,  Ch.  J.,  in  his  argument, 
(which  was  the  last  that  ever  he  made,)  held,  that  this  word  im- 
ports, that  'the  devisor  ought  to  have  the  land,  either  at  the  time 
of  the  making  of  his  will,  or  at  the  pubhcation  thereof,  which 
amounts  in  law  to  a  making' ;  "  d  or,  at  the  time  of  the  republic- 
ation of  the  will  by  a  codicil ;  which,  when  properly  executed, 
caused  the  will  to  speak  (as  it  is  expressed)  at  the  date  of  the 
codicil,  as  to  the  existing  state  of  the  property, — including  the 
testator's  intermediate  acquisitions,  as  far  as  the  fair  and  legal 
comprehension  of  the  terms  of  the  codicil  would  go.  c  And  noAv 
stat.  1  Vict.  c.  26,  s.  2-i,  makes  all  wills  of  realty  as  well  as  of 
personalty,  speak  from  the  death  of  the  testator. 

"  Immediately,"  mainienant,  applied  to  a  descent  of  lands,  (as 
where  the  stat.  of  3-1  Hen.  8,  speaks  of  "  a  descent  immediately 
after  the  decease,")  is  as  much  as  to  say  without  any  mean  time, 
or  mesne  estate.  He  who  is  innnediate  heir,  excludes  all  mesne 
heirs, — the  same  law,  of  an  immediate  tenant.  A  manor  does  not 
descent  immediatdif  where  it  is  expectant  on  the  refusal  or  disa- 
greement of  the  Avidow;  for,  peradventure,  she  will  not  refuse  in  a 
vear.  Littleton  says,  that  if  a  woman  disseissoress  take  a  hus- 
band, and  hath  issue,  and  dies,  and  afterwards  the  tenant  by  the 
curtesy  dies,  this  dpng  seised  shall  not  toll  entry  ;  for  the  issue 
came   not  to  his  lands  "  immediately"  after  the  death  of  his  mother. 

a  See  3  A.  &  E.  284  ;  12  A.  &  E.  G72.         d  Butler  and  Baker's  case,  3  Rep.  30. 
b  1  A.  &E.  514.  e  Barnes   and  Crowe,  7  Yes.  Jun.  48G. 

c  11  A.  &  E.  205. 

Note  17. — Forthwith  is  construed  to  uicau  within   twenty-four   hours.     Cham- 
pliu  V.  Chaniplin,  5  Edw.  ch.  328. 
37 


290  CONSTEUCTION  OF   THRASES  AM)  WORDS. 

In  other  cases  the  word  "  immediately  "  has  not  received  such 
a  strict  construction  that  a  thing  ought  to  be  made  in  ipso  arficulo 
temporis,  but  is  satisfied  if  it  be  made  in  convenient  time.  Thus, 
where  a  man  is  to  make  an  obhgation  hnmediately  after  an  award, 
he  ought  to  have  such  time  as  the  doing  of  the  act  requkes,  and 
then,  of  necessity,  there  ought  to  be  a  mean  time  between  the 
award  and  the  performance  of  the  act.  This  was  decided  in  18 
Ed.  4,  c.  22,  and  affirmed  for  good  hiw  in  Butler  and  Baker's 
case,  a 

"  Immediately"  cannot  be  satisfied,  if  an  interval  take  place, 
Grace  v.  Church,  h 

"  In  or  near  the  parish  or  division,"  in  43  Eliz.  c.  2,  is  only  di- 
rectory, c 

"  In  pursuance  of  this  act."  Keg.  v.  The  Bristol  and  Exeter 
Kailway  Company,  d 

"Inland  bill  of  exchange,"  is  a  bill  drawn  in,  arid  payable  in, 
Great  Britain,  Amner  v.  Clark,  e 

"  In  lieu :" — Where  a  fund  provided  by  statute  in  lieu  of  other 
means  of  payment  becomes  the  primary  fund,  Eeg.  v.  St.  Saviours', 
Southwark./" 

"  Instantly  :" — This  word  has  no  definite  meaning.  Such  words 
as  instanter  and  inconfinenfer  do  not  disj)ense  with  an  allegation  of 
time.     Keg.  v.  Brownlow.  (/ 

"Interruption  :" — An  obstruction  to  the  exercise  of  a  right;  not 
to  the  person,  see  Flight  v.  Thomas,  h 

"  It  was  proposed  :"  indicates  merely  something  in  contempla- 
tion ;  a  proposal.  Keg.  v.  Brownlow.  i 

"  Likewise,"  and  "  in  like  manner,"  so  couple  a  clause  or  sectioi 
bv  reference  to  a  former  clause  or  section,  as  to  carry  on  its  sense, 
and  extend  its  operation../ 

"  Lands  liable  to  rate  :" — These  words  may  extend  to  naviga- 
tions, cuts,  and  canals,  as  well  as  to  quays  or  wharfs.  Keg.  v.  The 
Leeds  and  Liverpool  Canal  Companies,  k  Per  Patteson,  J.'  "They 
are  not  the  less  land  for  being  covered  with  water."  In  the  Ke- 
gent's  Canal  Company,  I  the  expression  in  the  act  was,  "  lands, 
whether  covered  with  water  or  not." 

"  Liabilities"  and  "relative  liabilities,"  in  the  parochial  assess- 
ment acts,  6  &  7  Wm.  4,  c.  96,  s.  1.  The  court  said  tliis  language 
was  loose  "  and  inartificial  to  a  degi'ee  which  rendered  the  discov- 
ery of  a  definite  meaning,  extremely  difficult."     Keg.  v.  Capel.  m 

"  Manufacture  :"     AVhat  is  a  new  manufacture  within  the  stat. 

a  3  Rep.  34.  y  11  A.  &  E.  219. 

6  4  Q.  B.  R.  610.  AHA.  &E.  701. 

c  11.  V.  Loxdale,  1  Burr.  447.  i  11  A.  &  E.  119. 

d  11  A.  &  E.  194.  j  Stat.  Gloucester,  c.  2,  j)Ost,   cap.  11. 

e  C,  M.  &  k  471.  /c  7  A.  &  E.  685. 

/7A  &E.425.  /6B.&C.  720. 

''  m  12  A.  &  E.  411. 


OONSI'IIUCTION   OF  I'UltASES   AND  WORDS.  291 

21  Jac.  1,  c.  3  ?  That  a  new  coinl)iuatioii  of  materials  loreviouslj 
in  use,  producing  a  new  article,  or  a  better  article,  or  a  cheaper 
articl(!  to  th(!  pubhc,  than  that  produced  before,  by  the  old  metliod, 
is  an  invention  or  a  manufacture  intended  by  tlie  statute.  Sec 
Crane  v.  Price,  a 

"  Materiids  for  thi;  repairs  of  tli(;  highway,  and  for  the  use  of  the 
inhabitants,"  Avere  held  not  to  be  taken  by  the  inhabitants  for 
their  private  purposes,  but  only  for  repairs  of  roads.  Kylatt  v. 
MarHeet.  h 

"  Merchandise  :" — Stone  not  hable  to  duty  upon  merchandise, 
Fisher  v.  Lee.  c 

"  Minister  of  a  church  :"     See  Ile^.  v.  Mayor  of  Liverpool,  d 

"  Non-cultivation"  will  not  let  in  evidence  of  bad  cultiva- 
tion. 

AVhether  "  months"  in  an  iict  of  parliament  mean  lunar  or  cal- 
endar months,  is  a  point,  which,  after  frequent  and  solemn  deter- 
minations upon  it,  is  now  taken  to  be  so  firmly  settled  that  it 
should  not  be  shaken.  "  I  confess,"  said  Lord  Kenyon,  in  Lacon 
v.  Hooper,  "I  wish  that  when  the  rule  was  first  established  it  had 
been  decided,  that  '  months'  should  be  understood  to  mean  calen- 
dar and  not  lunar  months ;  but  tlic  contrary  has  l)een  determined 
so  long,  and  so  frequently,  that  it  ought  not  again  to  be  brought 
into  question.  In  the  instance  indeed,  of  a  quareimpedit,  the  com- 
putation of  time  is  by  calendar  months,  but  that  depend  on  the 
words  of  an  act  of  parliament,  iempus  semcstre.  But  for  all  other 
purposes,  and  in  all  acts  of  parliament  where  'months'  are  spoken 
of  without  the  word  '  calendar,'  and  nothing  is  added  fi'om  which 
a  clear  inference  can  be  drawn  that  the  legislature  intended  calen- 
dar months,  it  is  understood  to  mean  lunar  months."  e 

When  the  stat.  31  Hen.  8,  speaks  of  "  dissolution— renouncing, 
— reLmquishing, — gi^ing  up,  foi-feiture,"  <Szc.,  which  are  inferior 
means  by  which  religious  houses  came  to  the  king,  the  latter 
words  or  "by  any  other  means  come  to  the  king,"  cannot  be 
intended  of  an  act  of  parliament,  which  is  the  highest  manner  of 
conveyance  that  can  be ;  and  therefore,  the  makers  of  the  act 
would  have  put  that,  in  the  beginning  and  not  in  the  end,  after 
other  inferior  conveyances,  if  they  had  intended  it  to  extend  the 
act  thereunto.  But  these  words,""  by  any  other  means,"  are  to 
be  expounded  by  any  other  such  inferior  means.  Archbishop  of 
Canterbury's  case./" 

"  Occupy,"  See  R.  v.  Great  Bentley,  rj  Eeg.  v.  The  Inhabitants 
of  St.  Mary  Kalendar.  h 

"  Or  " — is  not  always  disjmictive.     It  is  sometimes  interpretative 

a4M.  &G.  603.  e  fi  T.  K.  22i. 

6  U  M.  &  W.  233.  f2Ilep. 'IG. 

c  12  A.  &  E.  522.  ,/  10  B.  &  C.  520. 

d  8  A.  (t  E.  176.  h  9  A.  &  E.  G82. 


292  COKSTEUCTION   OF  PHKASES   AKD   WOEDS. 

or  expository  of  the  former  word;  "haJivam,  vel  jurisdidionem." 
See  stat.  of  Marlbridge.  a  " 

"Other  than:" — The  sense  of  an  exception.  6 

"  Other  person  or  persons  :" — Persons  of  the  same  description 
as  those  before  enumerated. 

In  a  proviso  in  27  Hen.  8,  the  words  are,  "  That  if  any  wife 
shall  have  any  manors,  lands,  &c.  unto  her  assured  after  marriage 
for  term  of  her  hfe,  or  ofhcnrise  in  jointure,"  &c.,  an  estate  in  fee 
simple  was  held  to  be  within  the  express  letter  of  the  act,  for 
"  otherwise  "  extends  to  all  other  estates  conveyed  to  the  wife  not 
mentioned  before  in  the  act,  which  are  as,  or  more,  beneficial  to 
the  wife  than  the  estates  before  mentioned,  c 

"  Parish  or  place  to  which  they  belong  :  "  For  the  construction 
of  these  words  as  to  repairs  of  chapels  under  3  Geo.  4,  c.  72,  s. 
20.     See  Craven  v.  Sanderson,  d 

"  Parties  grieved : "  "Whether  the  near  relations  of  a  person 
whose  body  lias  been  disinterred  for  dissection  are  "  parties  ag- 
grieved" is  doubtful,  R.  V.  Toole,  t' 

"  Payments  bona  fide  made  "  under  the  Bankrupt  Act,  6  Geo.  4, 
c.  16,  see  Bevan  v.  Venables.  /" 

"  Presently  answer  :  "  held  m  Plowdeu  only  presently  become 
debtor,  not  presently  pay. 

"  Preferred : "  before  which  indictment  preferred,  held  not  to 
mean  the  court  alone  before  which  a  bill  is  found,  but  that  also  to 
which  it  is  removed,  P.  v.  Pembridge.  g 

Stat.  Marlbridge,  cap.  3.  ''  Non  Ideo  puniatur  dominus  per  re- 
demptionemr  "  Redemption  "  is  fine  :  and/nw  dicitur  quiafinem 
litibus  imponif  :  the  party  redeems  his  offence  for  a  sum  of  money, 
which  makes  an  end  of  his  trangi'essiou  and  of  his  imprisonment 
for  it.  h 

Upon  the  stat.  27  Hen.  8,  restraining  tenants  in  tail  from  mak- 
ing um^easonable  leases,  much  doubt  arose  what  would  satisfy  the 

a  Post,  cap.  11.  ^  1  M.&K.  72  :. 

b  tii  wd.  1S)5.  /  3  New  Cases,  400. 

c  Veinon's  case,  4  Eep.  3.  'gl  Dowl.  1,  2  M.  &  Rob. 

d  See  7  A.  &E.  880.  h  Griesley's  case,  8  Rep.  41. 

Note  18. — "  Or  ''  in  its  ordinary  signification,  corresponds  to  either  meaning, 
one,  or  the  other  of  the  two  ;  but  not  both.  It  is  sometimes  construed  to  mean 
"  and  "  when  such  construction  has  been  necessary  to  give  effect  to  a  clause  in  a 
will,  or  to  some  legislative  provision,  but  never  to  change  a  contract  at  pleasure. 
Indeed,  it  seems  to  be  an  inaccurate  expression  to  say  that  "  or  "  can  ever  mean 
"  and  "  It  should  rather  be  said,  that  for  strong  reasons,  and  in  conformity  with 
clear  intention,  "  or  "  has  been  changed,  or  removed,  and  "  and  "  substituted  in 
its  place.  Douglas  v.  Egre.  Gilp.  147,  opinion  of  McLean  J.  in  United  States  v. 
Railroad  Bridge  Co.  Am.  Law  Reg.  old  series,  vol.  3,  p.  G13.  "  And"  cannot  be 
construed  to  mean  "  or  "  in  a  penal  statute.  United  States  v.  Ten  cases  of  Shawls 
2,  Paine  1 02. 


CONSTRUCTION  OF  PHRASES  AND  WORDS.  293 

words  "rendeiing  the  old  and  accustomed  rent."  If  the  ancient 
reservation  were  of  the  rent  to  l)o  ])aid  in  gold,  and  tlie  new  res- 
eiTation  was  to  be  paid  in  silver,  it  would  not  satisfy  them.  If  a 
quarter  of  wheat  Avas  anciently  reserved,  and  a  new  lease  was 
made  rendering  eight  bushels  of  A\heat,  this  is  all  one  in  quality, 
value  and  nature ;  et  paruiii  lUjJ'crnnt  qtav  re  conconhud.  Joining 
two  several  farms  (always  before  let  for  20/.  and  10/.,)  hi  one  de- 
mise, rendering  30/.  entire  rent  out  of  both, — or  letting  parcel  of  a 
farm,  rendering  rent  ^;ro  ra/a,  were  cases  in  which  tlie  lease  Avas 
impeached,  as  being  new  rents  and  not  the  accustomed  rent.  But 
it  was  admitted  in  the  case  of  two  coparceners,  that  one  might  let 
her  moiety,  yieldnig  the  moiety  of  tlu;  accustomable  rent;  for  it 
would  be  hard  that  the  forwarthiess  of  her  coparcener  should  pre- 
judice her  of  the  benefit  of  a  fine  which  she  might  have,  by  mak- 
ing of  a  lease  of  her  moiety.  And  this  was  different  from  the 
case  of  the  lease  of  part  with  reservation  of  rent  jrro  rata,  which 
is  his  own  act.  etc.,  &c.  a. 

"Kevoking  a  submission  :"  The  words  of  the  stat.  3  and4:  Wm. 
4,  c.  42,  s.  39,  arc  not  large  enough  to  take  aAvay  the  power  of  re- 
voking a  submission  to  arbitration  m  case  of  a  reference  on  the 
trial  of  an  indictment:  but  apply  only  to  civil  actions,  K.  v.  Bar- 
dell,  619. 

"  Separate  and  distinct  dwelling  house :"  See  Pteg.  v.  The  Great 
and  Little  Useworth,  and  N.  BudtUcli.  b 

"  Separate  and  distinct  tenements."     Beg.  v.  Bipon.  c 

"  Stage  wagons  :"  What  can-iages  will  satisfy  these  words,  see 
Beg.  V.  Buscoe.  (/ 

"  Shipping  for  exportation  :"  These  Avords  are  often  used  in  a 
sense  less  extensive,  than  the  exporting  of  commodities  to  foreign 
ports  and  places,  and  in  the  more  restrained  sense  of  carrying  com- 
modities from  one  port  to  another,  within  the  kingdom.  Ban-et 
V,  Darlington  Bailway  Company,  e 

"  Subject  to  the  laws  and  statutes  now  in  force :"  See  B.  v. 
Churchwardens  of  St.  James  "Westminster./' 

"Such:"  The  operation  and  effect  of  such,  Itujusmodi,  has  been 
before  shown.     Such  m  mischief  and  inconvenience. 

"  Such  as  have  been  heretofore  usually  rated  :"  These  words 
refer  not  to  legal  rateabUity,  but  to  rating  in  point  of  fact,  and  to 
the  practice  of  rating  in  the  particular  i)arish  not  in  the  county 
generally.     Beg.  v.  Bose.  g 

"  Thereupon  and  thereby  :"  For  the  distinction  between  these 
tenns,  see  Atkinson  v.  Baleigh.  Jt 

"  Towards  and  unto :"    See  B.  v.  The  Marchioness  of  Downslm-e.  / 

a  Cases  of  leases,  5  Kep.  5.  /'  5  A.  it  E.  399. 

Z)  5  A.  &  E.  361.  'g  6  Q.  B.  E.  153. 

c  See  7  Q.  B.  E.  225.  h  4  Q.  B.  E.  79. 

cZ  8  A.  &  E.  388. .  i  5  A.  &  E.  232. 
e  2  M.  &  G.  134 


294:  CONSTRUCTION  OF  PHRASES  AND  WORDS. 

"  Unless  he  shall  have  paid  all  such  rates :"  Payment  of  rates  to 
entitle  a  person  to  be  put  on  the  burgess  list  of  a  borough  under 
stat.  5  and  6  Wra.  4,  c.  76,  s.  9,  must  be  a  papnent  by  the  party's  own 
act.     lieg.  V.  The  Mayor  of  Bridgnorth,  a 

"Undertaking:"  I'he  word  is  ambiguous.  It  may  mean  the 
speculation,  or  might  be  taken  to  mclude  the  land  itself,  h 

"Unmarried:"  in  a  will,  "never  having  been  married,"  Per 
Lord  Alvauley  in  Maberly  v.  Strode,  c 

"  Unmarried"  by  the  legislature,  3  &  4  W.  &  M.  c.  11,  s.  7,  'not 
man-ied  at  the  time.'     Bott's  Poor  Laws. 

"  Uj^on  :"  This  word  in  most  cases  is  used  elliptically  for  upon 
condition  of :  as,  "upon  payment  of  costs:" — "  tjpon  conviction 
of  an  ofiender." 

"  Upon"  is  sometimes  used  for  after,  within  a  reasonable  time  : 
Thus,  "  Pvoman  Catholics  may  hold  office  upon  taking  certain 
oaths,"  10  Geo.  4,  c.  7,  s.  14.  "  On  admissions"  in  the  case  of 
copyholds. 

"  Upon" — construed  "  upon  the  occasion  of,"  or  "  at  the  time  of" 
admission.     Eeg.  v.  Humphery,  d 

"  Usual  covenants"  does  not  mean  universally  mserted. 

"  With"  taken  to  mean  "  and  as  incident  thereto."  The  Durham 
and  Sunderland  Railway  Company  v.  Walker,  e 

The  words  of  the  stat.  of  enrolments,  27  Hen.  8,  c.  16,  are 
"  withm  six  months  after  the  date  of  the  same  writings  indented  :" 
upon  which  it  was  adjudged  that  if  such  writings  have  a  date,  the 
SIX  months  shall  be  accounted  from  the  date  ;  if  they  have  no  date 
then  from  the  delivery  ;  and  tlie  day  is  exclusive.  And  "  from  the 
date,"  and  "  from  the  day  of  the  date,"  are  of  one  sense,  since  in 
judgment  of  law  the  date  includes  the  whole  day  of  the  date.  If 
a  lease  is  to  begin  from  the  day  of  the  making,  or  from  the  day  of 
the  date,  the  day  itself  of  the  date  is  excluded.  But  where  the 
demise  is  limited  to  begin  from  the  making,  and  where  it  was 
worded  "  to  have  and  to  hold  for  three  years  from  henceforth," 
the  day  of  the  delivery  was  taken  inclusive,  and  the  day  itself 
held  parcel  of  the  demise./' 

It  has  been  held  subsequently,  that  the  words  "fi*om  the  day  of 
the  date"  in  a  lease,  mean  either  inclusive  or  exclusive,  according 
to  the  subject-matter,  and  the  court  will  construe  them  so  as  to 
effectuate  the  intention  of  the  parties,  q 

"Wreck:"  in  stat.  3  &  4  Wm.  4,  c.^52,  s.  50,  is  not  lunited  to 
goods  forfeit  after  a  year  and  a  day  under  stat.  Westminster  1. 
Ban-y  v.  Arnauld.  h 

The  stat.  32  Hen.  8  c.  28,  and  13  Ehz.  c.  10,  as  to  leases  by 

a  10  A.  &  E.  60.  e  See  2  Q.  B.  E.  900. 

b  Doe  dem.    Myatt  v.  The  St.  Helen's  /Claytou's  case,  5  Rep.  1. 

Railway  Compauy,  2  Q.  B.  R.  ;374.  V/  Pugh  v.  Leeds  (Duke  of)  Cowp.  714. 

c  3  Ves.  450.  h  10  Adel.  &  Ellis.  646. 
d  See  10  A.  &  E.  335. 


CONSTRUCTION   OF  PHRASES   AND   WORDS,  295 

spiritual  persons,  "  whereupon  the  accustomed  yearly  rent  or 
more  shall  be  reseryed,"  are  in  'pari  maten'e,  and  nnist  be  taken 
together.  To  render  a  lease  yahd  under  this  statute,  it  must  be 
made  of  land  which  had  been  previously  let,  or  on  which  some 
rent  had  been  reserved,  (i 

A  similar  construction  was  put  u[»()n  nearly  the  same  words  in 
a  power,  as  may  be  seen  in  Doe.  dcm.  JjartU-tt  v.  Kendle,  3  ]M.  S: 
S.  99.     See  also  Fuller  v.  Abbott,  4  Taunt.  105. 

"Year,"  and  "yearly  hiring'."  A  year  is  the  time  wherein  the 
sun  goes  round  his  compass  through  the  twelve  signs,  viz :  305 
days  and  about  six  lioui-s.  But  in  leap  year  the  statute  24,  Geo. 
2,  Ch.  25,  enacts  that  the  year  shall  consist  of  3GG  ;  so  that  in  the 
case  of  Rex.  v.  Wormingall,  b  upon  a  question  of  yearly  hiring, 
Lord  Ellenborough  said :  "  In  those  years  which  consist  of  360 
days,  a  hiring  and  service  for  a  year,  must  be  for  that  same  num- 
ber of  days,  in  like  manner  as  Avhen  the  year  was  365  days ;  it 
must  have  continuance  during  that  number. 

a  Doe.  d.     Tennysoa  v.  Yarborough,  Lord;  7  Moore  258,  and  1  Bing.  fll. 
b  6  M.  &  S.  350. 


296  mSTOKY  OF  jueisprudence. 


CIIAPTEPi  IX. 

THE  BOUNDARIES  OF  LEGISLATION  AND  OF  JUDICIAL  INTERPRETA- 
TION SOUGHT  TO  BE  ASCERTAINED  :  THE  INSTANCES  OF  THE  EXER- 
CISE OF  THIS  BRANCH  OF  JUDICATURE  IN  OUR  COURTS  REVIEWED  ; 
OF  LEGITIMATE  CONSTRUCTION  AND  OF  INTERPRETATIVE  LEGISLA- 
TION, IRRESPECTIVE  OF  CONSTITFTIONAL  RESTRICTIONS. 

"  It  is  a  remarkable  fact,  that  in  an  enliglitened  age,  and  among 
so  many  intelligent  inquirers  into  the  philosophy,  both  of  history 
and  of  law,  so  little  attention  should  have  been  paid  to  the  con- 
sideration of  the  important  question, — What  are  the  principles 
upon  which  the  jurisprudence  of  a  country  ought  to  proceed? 
Certainty  in  the  law,  to  a  positive  extent,  is  unfortunately  unat- 
tainable ;  immutability  of  laws,  even  if  it  were  desirable  (which  it 
sm'ely  is  not)  is  still  more  impracticable.  An  extensive  alteration 
in  the  condition  of  the  people, — a  total  change  of  circumstances, 
must,  at  any  time,  induce  some  change  of  institutions,  and  render 
absolutely  necessary  a  sensible  modihcatiou  of  the  laws.  Laws 
must  be  accommodated— or  laws  will  accommodate  themselves — 
to  the  growing  necessities  of  mankind,  and  the  varymg  state  and 
condition  of  human  societj'.  "  Comment  enchainer  Taction  du 
temps?  Comment  s'opposer  au  cours  des  evenements,  ou  a  la 
pente  insensible  des  mceurs  ?  Comment  connaitre  et  calculer  d'a- 
vance  ce  que  1' experience  seule  pent  nous  reveler  ?  La  prevoyance 
peut-eUe  jamais  s'etendre  a  des  objects  que  la  pensee  ne  pent  at- 
teindre  ? — Les  hommes  ne  se  reposent  jamais ;  ils  agissent  tou- 
jours  ;  et  ce  mouvement,  qui  ne  s'arrete  pas,  et  dont  les  effets  sont 
diversement  modifies  par  les  circonstances,  produit,  a  chaque  ins- 
tant, quelque  combinaison  nouvelle, — quelque  nouveau  fait, — quel- 
que  resultat  nouveau."  a  ' 

The  term  "  legislation,"  though  ordinarily  restricted,  in  its  sig- 
nification, to  the  act  of  making  a  law,  or  a  code  of  laws,  is  some- 

o  Discours  Prelimiuaire  du  premier  projet  du  Code  Civil,  p.  20. 

Note  1. — The  following  is  believed  to  be  a  literal  ti'anslation.  "  How  arrest  the 
action  of  time  ?  How  oppose  the  course  of  events  or  the  insensible  change  of 
customs?  How  know  and  calculate  in  advance  what  experience  alone  can  reveal 
tons?  Can  foresight  ever  extend  to  objects  which  thought  cannot  attain?  Men 
never  rest,  they  are  ever  active,  and  that  movement  which  does  not  stop,  and 
whose  efforts  are  diversely  modified  by  circumstances,  produces  every  moment 
Bome  new  combination  ;  some  new  fact ;  some  new  result." 


HISTORY  OF  JURISPRUDENCE.  297 

times  used  to  denote  the  whole  body  of  a  legislative  act  of  what- 
ever name  or  origin,  and  may  not  improperly  be  extended  to  em- 
brace the  entire  map  of  what  are  denominated  laws,  taken  atten- 
tively. It  is  in  tliis  latter  sense  that  legislation  is  distmgiiished 
fi'om  jurispnidence.  a 

But  it  is  not  in  the  power  of  human  intelligence  whether  com- 
bined in  legislative  bodies,  or  otherwise,  to  foresee  and  provide 
beforehand,  for  every  combination  of  facts,  or  circumstances, 
which  may  occur  in  the  infinite  vanety  of  human  affairs.  No 
human  code  ;  no  body  of  legislators  ever  undertook  to  do  this. 
No  human  wisdom  could  have  accomplished  such  a  task,  if  it  had 
ever  been  undertaken.  The  lawmaker  however  desirous  he  ma}' 
be  to  make  his  code  complete,  can  only  foresee  and  provide  for 
classes  of  cases  ;  and  in  doing  this,  he  must  rather  be  guided  by 
the  experience  of  the  past,  than  by  any  faculty  of  discerning  the 
future,  h 

There  is  accordingly,  a  large  class  of  cases  which  are  inevitably 
left  impro\dded  for  by  every  system  of  human  legislation ;  and  it 
becomes  an  interesting  inquiry  to  determine  how  much  has  been 
actually  settled  by  legislation,  and  the  rules  by  which  this  fact  is 
determined,  and  what  are  the  rules  of  conduct,  and  what  the 
measure  of  justice  that  applies  to  cases  not  included  in  the  gen- 
eral provisions  of  legislation.  The  only  answer  that  can  be  given 
to  this  latter  inquiry  is,  that  they  are  to  be  detemiined  in  each 
state  or  government,  by  what  is  called  its  jurisprudence,  which  is 
the  administration  of  all  the  laws  of  the  state  including  legisla- 
tion. But  jurisprudence,  which  consists  in  giving  interpretation 
to,  and  in  making  application  of  statutes  to  particular  cases,  in- 
cludes also  the  application  of  those  precepts  of  natural  right  which 
have  not  been  superceded  by  express  legislation,  and  which  there- 
fore remain  in  full  force  as  to  all  other  circumstances  and  cases. 

These  precepts  or  piinciples  of  natural  right,  which  are  thus 
left  unaffected  by  positive  legislation,  are  those  fimdamental  prin- 
ciples which  arc  necessarily  presupposed  by  eveiy  code,  and  by 
every  act  of  legislation,  general  or  special,  while  they  are  als3 
rales  to  control  legislation  in  the  spirit  of  laws,  determine  when 
properly  applied,  what  legal  rights  and  duties  have  been  violated, 

a  Gushing  v.  The  Eoman  Law,  §.27.  5  Id.  §  33. 

38 


298  LEGISLATION  AND  JUEISPEUDENCE. 

and  what  onglit  to  be  done,  in  order  that  those  whose  legal  rela- 
tions are  disturbed,  may  be  placed,  as  near  as  may  be,  in  the  same 
situation  in  which  they  would  have  stood  if  the  rules  of  right  had 
been  observed.  This,  equally  with  legislation,  is  a  measure  of 
justice.  This  is  also  juiisprudence.  If  a  case  is  left  wholly  unpro- 
vided for  by  legislation  or  positive  law,  it  is  governed  solely  b}' 
the  natural  law  ;  if  m  jmrt  only,  then  partly  by  the  natural,  and 
partly  by  the  positive  law.  The  natural  law  thus  becomes  the 
complement  of  positive  legislation,  and  supplies  its  deficiencies, 
in  reference  to  all  cases  which  are  either  wholly,  or  in  part  only, 
regulated  by  its  provisions. 

Principles  of  jurisprudence,  as  above  described,  become  devel- 
oped in  two  ways  or  forms.  The  first  occurs  when  the  question 
arises  in  the  mind  of  an  individual  as  to  what  the  law  requires 
him  to  do  in  a  particular  case.  When  this  happens,  the  party 
either  determmes  for  himself  what  he  ought  to  do,  or  he  apphes 
for  information  to  some  other  person,  who  makes  it  a  business,  or 
profession,  to  consider  and  advise  in  such  matters.  The  principles 
which  are  thus  developed,  gradually  assume  the  character  of 
usages,  and  become  a  part  of  the  customary  law.  The  second 
form  in  which  jurispnidence  technically  so  called  is  develoj)ed, — 
occurs  in  the  administration  of  justice.  The  case^  wliich  are  de- 
cided in  this  way,  become  precedents  or  authorities  for  similar 
and  analogous  cases  subsequently  occun'ing.  a 

Legislation  being  the  estabHshment,  beforehand,  of  those  gen- 
eral principles  by  which  civil  conduct  is  to  be  regulated ;  and  jur- 
isprudence, consisting  of  those  jDiinciples  wliich  are  developed  in 
the  application  of  the  former  to  /jDarticular  cases,  it  follows,  that 
the  latter  will  be  more  or  less  extensive,  according  as  the  former 
is  more  or  less  general  or  particular ;  jurisprudence  being  the 
most  extensive  when  the  law  is  most  general,  and  least  extensive 
when  the  law  goes  furtherest  into  details  and  particulars.  Legis- 
lation, though  usually  general,  may  neverthless  descend  to  mmute 
details  and  particulars.  When  this  is  the  case,  it  so  far  occupies 
the  place  which  woidd  otherwise  be  filled  with  juiisprudence. 
Jurisprudence  on  the  other  hand  supplying  all  that  legislation 
leaves  unprovided  for  in  the  administration  of  justice,  and  devel- 
a  CusHng  on  Jurisprudence,  §  40. 


LEGISLATION  AND  JUEISPRUDENCE.  299 

oping  principles  wliicli  serve  as  rules  of  conduct  for  cases  subse- 
quently arising,  so  far  stands  in  the  place,  and  performs  the  func- 
tions of  legislation,  a 

It  will  thus  Ije  seen  to  be  a  most  difficult  task  to  establish  the  pre- 
cise boundary  Avhich  separates  legislation  proper,  from  uhat  is 
properly  culled  jurisprudence,  and  to  attribute  to  each  the  exact 
domain  to  uhich  it  is  appropriately  entitled.  An  examination  of 
codes  and  systems  would  probably  show,  that  the  gi-eat  outlines, 
embracing  those  institutions  which  are  peculiar  to  each,  and  which, 
to  a  certam  extent,  are  political  in  their  character,  have  been  the 
work  of  legislation ;  while  those  parts  which  have  their  founda- 
tion in  natural  justice,  and  are  the  same,  or  nearly  so,  among  all 
nations  of  the  same  rank  in  civilization,  and  which  chiefly  affect 
the  relations  of  the  citizens  to  one  another,  have  been  the  product 
of  jurisprudence. 

The  great  and  essential  difference  between  legislation  and  juris- 
prudence, that  which  separates  one  fi'om  the  other  distinctly,  is 
the  manner  in  Avhich  they  respectively  become  established.  The 
former  takes  the  place  where  the  law  making  power  discovers  oc- 
casion for  it ;  and  its  provisions  are  framed  prospectively  for  such 
classes  of  cases  as  the  legislator  thinks  most  likely  to  occur.  The 
latter  is  only  called  into  being  when  an  actual  case  arises  for  its 
exercise,  and  is  then  adapted  to  the  particular  circumstances  of 
that  case.  Legislation,  when  once  established,  becomes  fixed  and 
unalterable ;  and  it  receives  no  additions,  but  by  subsequent  legis- 
lation. Jurisprudence  is  constantly  progressive,  and  continually 
enlarging  and  extending  itself,  as  cases  occur  for  its  exercise,  and 
adapting  its  principles  to  the  social  and  political  changes  which 
are  perpetually  going  on  in  society. 

The  French  quotation,  above  cited  by  Mr.  Dwarris,  as  also  those 
which  follow  in  this  chapter,  are  akind  of  preface  to  the  code  Napo- 
leon. The  importance  of  this  code  in  the  French  system  of  jurispru- 
dence for  the  time,  audits  value  as  continuing  sound  principles  in  the 
view  of  Mr.  Dwarris,  makes  its  history,  perhaps,  of  interest  to  the 
student.  The  frequent  revolutions  in  that  country,  based  some- 
what upon  the  oppressive  institution  of  the  state, — the  pri\'ileges  of 
the   nobles, — of  the  church, — and    a  vicious  financial  system, — 

aid.  4L 


300  HISTORY  OF  THE   CODE  NAPOLEON. 

seemed  to  have  tmned  a  portion  of  tlie  popular  fury  against  its  legal 
institutions ;  and  these  were  rendered  the  more  odious  by  the  acts 
of  various  assemblies,  under  different  names,  who  exercised  legis- 
lative power  in  a  dictatorial  and  desj^otic  manner.  These  new 
acts,  by  the  new  principles  they  asserted  in  effect,  swept  away  all 
the  former  principles  of  Avhat  was  called  the  jurisprudence  of  the 
state.  - 

About  the  year  1793,  the  celebrated  lawyer  Cambaceres,  a  native 
of  Montpeher,  who  had  risen  to  the  highest  eminence  in  his  j)ro- 
fession,  proposed  a  code  of  laics,  conceived  in  the  spirit  of  the  age  to 
the  then  rulers,  a  body  of  men,  who,  it  may  be  said,  had  cut  their  way 
with  the  dagger  and  the  sword,  to  first  and  simple  principles.  In 
August  of  that  year,  he  presented  a  draft  of  his  code  to  the  con- 
vention, entitled  "  Projet  de  Code  Civile;"  The  work  was  too 
great,  and  too  profoimd,  to  be  deliberated  upon  at  so  stormy  a 
moment,  when  the  minds  of  the  convention  were  too  unsettled  for 
an  undertaking  so  important  as  the  settlement  of  a  legal  system 
for  the  nation. 

Two  years  later,  in  1795,  Cambaceres,  then  a  member  of  the 
'council  of  Five  Hundi-ed,  presented  to  this  body  an  amended  pro- 
ject of  a  code,  wliich  was  ordered  to  be  printed.  Nothing  deci- 
sive, however,  was  done  by  tliis  convention  towards  the  achieve- 
ment of  this  great  work. 

On  the  overthi'ow  of  the  Directory,  by  the  revolution  of  the  9th 
November,  1799,  the  attention  of  the  new  consular  government 
was  immediately  turned  to  the  subject  of  a  code.  Bonaparte 
made  it  one  matter  of  charge  against  the  Directory,  that  they  had 
not  achieved  a  work  so  loudly  called  for  by  the  spirit  of  the  age, 
and  the  unsettled  state  of  the  jurisprudence  of  the  country ;  and 
especially  the  great  interest  which  Cambaceres,  their  second  Consul, 
had  taken  in  his  former  efforts  towards  this  end,  and  he  (Camba- 
ceres,) was  then  engaged  by  the  first  Consul  to  pursue  the  same 
design.     Accordingly,  in  the  course  of  the  first  year  of  the  Con- 

NoTE  2. — The  data  upon  whicli  the  following  observations  are  made,  and  some 
of  its  views  adopted,  are  from  a  French  author,  (translated)  entitled,  ' '  Les  cinq 
codes  avec  notes  et  traites  pour  servir  a  un  cours  complet  de  Droit  Francais;  a 
I'usage  des  Etudiants  en  Droit,  et  de  toutes  les  classes  de  citoyens  cultives."  Par 
J.  B.  Liserf,  Avocat  aux  conseils  du  Roi  et  a  la  cour  de  cassation,  8  vc,  Paris,  1819. 


HISTORY  OF  THE  CODE  N.VPOLEON.  301 

sulate,  a  tldrd  project  of  a  code,  embracing  the  views  of  Cambu- 
ceres,  was  drawn  up  and  presented  to  the  government,  by  a  com- 
mission of  the  council  of  Five  Hundred,  at  tlio  head  of  wliich  was 
Jacc^ueminot,  who  was  afterwards  a  meni])er  of  tlio  Senate  under 
Napoleon. 

Such  was  the  condition  of  thbif^s,  when  Napoleon,  by  a  consular 
decree  of  the  12th  August,  1800,  ordered  a  commission  to  be  in- 
stituted "  to  compare  the  order  which  had  been  followed  in  the 
l)reparation  of  the  prqjccfs  for  a  civil  code  hitherto  published,  to 
determine  the  plan,  wliioh  the  commission  shall  think  best  to 
adapt,  and  to  discuss  the  chief  principles  of  ci\il  legislation." 
This  commission  consisted  of  Messrs  Portalis,  Trouchet,  Rigot, 
Premaneau  and  Mallcville,  and  the  Minister  of  Justice  was  added 
to  their  number. 

In  the  following  year,  1801,  these  commissioners  reported  a 
(h-aft  of  a  civil  code,  formed  cliiefly  out  of  the  materials  of  the 
former  projects.  These  were  accompanied  with  a  preliminary  dis- 
course on  the  principles  by  which  they  had  been  guided.  This 
discourse  was  entitled,  "  Discours  preliminaire  du  premier  prqjet 
ihi  code  civil,"  and  this  is  the  authority  from  wliich  Dwarris  has 
selected  his  French  quotations. 

This  last  mentioned  draft  of  a  code  was,  in  the  first  instance 
submitted  to  the  court  of  Cassation,  (of  eiTors,)  and  the  various 
courts  of  appeal,  and  the  reports  of  the  judges  of  these  coui'ts 
furnished  the  matter  of  some  improvements  in  the  draft,  and  it 
was  next  submitted  to  the  Coimcil  of  State.  In  this  body  over 
which  Bonaparte,  then  first  Consul,  presided,  every  part  of  the  pro- 
posed code  was  thorouglily  discussed.  After  it  had  been  discussed 
in  this  manner,  it  was  presented  to  the  Tribunate,  where  it  under- 
went another  discussion,  and  was  returned  to  the  Council  of  State, 
as  adopted,  rejected,  or  amended. 

In  tliis  way,  five  codes  of  law,  were  successively  matured  and 
produced,  viz :  1st.  "  The  Code  Civile,"  which  was  that  called  by 
eminence  "  The  Code  Napoleon ;"  2d.  *'  The  Code  de  Procedure 
Civile,'"  by  which  the  forms  of  actions  and  modes  of  proceedings, 
fi'om  the  tribunal  of  a  justice  of  the  peace  up  to  the  highest  courts 
in  civil  cases,  were  enacted ;  3d.  "  The  Code  Pencd,"  or  criminal 
code ;  4th.  "  The  Code  d' Instruction  Criminelle,"  or  mode  of  pro- 


302  HISTORY   OF  THE   CODE  NArOLEON. 

ceeding  in  criminal  actions ;  and,  5tli.  "  The  Code  de  Commerce" 
or  code  of  law  mercliant.  Tliis  whole  body  of  law,  comprising  all 
these  codes,  was  generally  printed  in  one  duodecimo  volume. 

We  have  dwelt  morenpon  this  history,  and  at  greater  length  than 
might  seem  needful  in  this  treatise,  but  we  have  seen  already  in 
our  own  state,  the  commencement  of  a  system  of  codification 
aheady  adopted,  so  far  as  regards  the  practice  of  the  courts,  and 
under  a  name  that  seems  to  have  been  borrowed  from  this  French 
example,  and  with  propositions,  not  yet  adoj)ted,  borrowed  from 
the  same  example,  to  extend  to  the  whole  system  of  civil  and 
m?7?i?z«/ jurisprudence  of  the  state,  by  codification.  It  does  not 
become  us  to  say  in  advance,  with  what  advantage  to  our  own 
jurispnidence,  if  adopted. 

It  is  said,  by  those  who  had  the  best  opportunities  of  kno-wing, 
and  pretty  generally  believed,  that  in  no  one  prominent  act  of 
Napoleon's  administration  did  he  pride  himseh  more,  than  in  this 
code  which  bore  his  name.  From  the  history  which  we  have  given 
of  the  manner  in  wdiich  it  was  drawn  up  and  prepared  ;  from  the 
active  part  he  took  in  commissioning  the  distinguished  lawyers 
for  that  purjiose ; — from  the  fact  that  he  presided  over  the  bodj* 
before  whom  it  was  so  thoroughly  discussed,  and  as  we  may  be- 
lieve from  the  active  powers  of  his  mmd,  he  could  well  ap- 
preciate the  pomts  of  such  discussion ; — and  the  fact  that  he 
honored  the  manuscript  copy  of  tliis  code  with  his  imperial  signa- 
ture, we  may  perhaps,  even  at  this  day,  judge  somewhat  as  to  the 
credit^  to  wliicli  he  was  entitled,  as  the  author  of  the  Code  Naj)o- 
leon.  His  greatest  admirers  claim  for  him  in  this  regard,  to  have 
been  a  second  Justinian.  Tliis  may  be  true,  and  still  be  an 
equivocal  compliment ;  for  history  accords  to  Justinian  about  the 
same  participation  in  the  actual  preparation  of  his  gi-eat  work 
called  his  Institutes,  as  to  Napoleon  in  projecting  his  code. 
None  will  deny  to  either,  the  possession  of  imperial  powers  of 
mind  ;  and  none  should  detract  from  the  credit  of  those  great  legal 
luminaries  who  prepared  these  codes  for  the  consideration  and 
adoption  of  their  imperial  masters.  It  is  nevertheless  true,  that 
both  Napoleon  and  Justuiian  rose  to  greatness  in  their  respective 
empires,  by  other  qualities  of  greatness,  besides  those  which  dis- 
tinguished them  as  military  chieftains. 


HISTOKY  OF  THE   CODE   N.\rOLEON.  303 

But  the  Code  Napoleon  -with  its  prefatory  "  Discours  PreJimin- 
aire"  became  the  statute  law  of  France,  and  the  jurisprudence  of  the 
countries  dependent  on  French  power.  It  was  introduced  hi  Hol- 
land,— in  the  Confederation  of  the  lUiine, — in  the  kingdom  of  West- 
phalia,— in  Bavaria, — in  tlio  Idngdom  of  Italy, — in  Naples, — in 
Spam, — and  in  various  smaller  sljites  that  were  under  the  French 
influence.  It  was  substantially  founded  on  the  priiici2)les  of  the 
civU  law,  the  common  basis  of  continental  jurisprudence. 

"With  all  the  merits  of  this  French  code,  the  downfall  of  the 
emperor  was  the  signal  for  its  disuse  in  the  foreign  dependencies 
of  France  ;  but  in  that  country  itself,  it  was  so  strongly  rooted  in 
the  confidence  of  the  people  as  to  sustain  itself.  By  a  royal  ordi- 
nance of  July  17,  181G,  it  is  declared  : 

"  We  are  too  well  convmced  of  the  evils  of  a  fluctuating  legisla- 
tion in  a  state,  to  think  of  a  general  revision  of  the  five  codes, 
which  were  in  vigor  in  our  kingdom,  at  the  time  that  our  constitu- 
tional charter  was  granted.  We  reserve  to  oui'selves,  only  to  pro- 
pose particular  laws,  in  order  to  reform  such  things  as  admit  of 
improvement;  or  in  which  time  and  experience  shall  have  dis- 
covered imperfections.  But  although  reforms  of  this  kind  can 
only  be  the  work  of  time,  and  the  fiTiit  of  long  meditations,  it  is 
indispensable  to  suppress,  from  the  present  moment,  those  denom- 
inations, expressions  and  formulas  in  the  different  codes,  which 
are  not  in  harmony  with  the  principles  of  our  government,  and 
wliicli  recall  the  recollection  of  times  and  circumstances,  of  which 
we  would  efiace  even  the  recollection." 

In  consequence  of  this  decree,  the  various  names  and  titles  be- 
longing to  the  imperial  government,  were  erased,  and  the  appro- 
priate ones  of  the  royal  government,  introduced  in  their  stead.  At 
various  subsequent  periods,  laws  have  been  enacted,  considerably 
modifying,  or  wholly  changing  several  important  j)rovisions  of  the 
"  Code  Napoleon." 

This  whole  code  was  comprised  in  2281  paragi'aphs,  or  sections, 
and  numbered,  like  our  own  Code  of  Proceedure,  for  the  gi'eater 
facility  of  reference,  but  they  are  very  brief  and  tersely  written, 
and  of  about  the  average  length  of  verses  in  the  Bible.  The  work 
is  divided  into  three  books ;  each  book  into  a  certain  number  of 
titles  ;  and  each  title  comprises  one  or  more  chapters.     The  pre- 


304  BOUNDARIES  OF  LEGISLATION. 

limmary  title  is  used  to  effect  an  imderstandirig  and  the  applica- 
tion and  interpretation  of  the  provisions  of  every  part  of  the  code, 
and  precedes  the  whole  body  of  the  work ;  therefore  the  signifi- 
cance of  the  quotations  by  our  author,  Dwanis. 

Again,  with  the  highest  degree  of  certainty  of  which  laws  are 
susceptible,  doubts  will  still  arise  upon  the  sense  of  enactments, 
or  as  to  their  application.  In  all  cases  w^here  tlie  legislature  has 
not  defined  with  perfect  precision  the  exact  nature  of  its  j)i'ovi- 
sions,  some  authority  will  be  required  to  decide  upon  the  mean- 
ing of  the  terms  which  it  employs,  or  the  cases  to  which  its  pro- 
visions shall  extend. 

In  ancient  times,  cases  of  the  first  impression,  and  all  matters 
presenting  any  serious  doubt  or  difficulty,  were  usually  "adjourned 
into  parliament,  to  be  resolved  and  decided  there."  a  To  this 
efiect  Bracton  observes  :  "  Si  aUqzia  nova  et  ineonsueta  cmerserinf, 
qua'  nunquam  jjvius  evenerunt,  et  obsciirum  et  difficile  sit  eorurn  judi- 
cium, tunc  ponaniur  judicia  in  respectu  usque  ad  Magnam  Curiam, 
ut  ihi  per  consilium  curice  terminetur."  b  For  the  high  court  of 
parliament  met  every  year,  "  or  oftener  if  need  were,"  for  the 
"  maintenance  and  execution  of  the  laws."  c 

In  like  manner  it  has  been  said  in  modem  times,  (and  the  senti- 
ment has  been  before  noticed  with  approbation,)  parliament  is 
always  at  hand  to  supply  deficiencies  and  to  correct  mistakes,  d 

Is  the  legislature  then  to  be  interrogated,  every  time  a  doubt 
arises  upon  the  construction  of  a  statute,  to  decide  particular  dis- 
putes ?  Assuredly  not.  For  would  not  this  be  endless  ?  AVould 
it  not  impair  the  usefulness,  and  derogate  fi'om  the  dignity  of  the 
judicature  ?  Would  it  not  give  room  for  partiaHty  and  oppres- 
sion ?  "  Forcer  le  magistrat  de  recourir  au  legislateur,  ce  serait 
admettre  le  plus  funeste  des  principes ;  ce  serait  renouveler  parnii 
nous  la  desastreuse  legislation  des  Eescrits.  Car,  losque  le  legis- 
lateur intervient  pour  prononcer  sur  des  afiaires  nees  et  vivement 
agitees  entre  particuliers,  il  n'est  pas  plus  a  I'abri  des  surprises, 
que  les  tribunaux."  And  under  such  circumstances  certainly : 
"  On  a  moins  a  redouter  I'arbitraire  regie,  timide  et  circonspect 
d'un  magistrat  qui  pent  etre  reforme,  et  qui  est  soumis  a  Faction 
en  forfaiture,  que  i'arbitraire  absolu  d'un  pouvoir  independant, 
qui  n'est  jamais  responsable." 

"  Des  lois  intervenues  sur  des  affaires  privees  seraient  souvent 
suspectes  de  partialites,  et  toujours  elles  seraient  retroactives  et 
injustes  pour  ceux  dont  le  htige  aurait  precede  rinteiTention  de 

a  2  Inst.  408. 

h  Bracton,  lib.  1,  ca.  2. 

c  4E(i\v.  3,  ca.  14;  3G  Edw.  3,  ca.  20. 

d  Ante,  p.  617,  G41. 


BOUNDARIES   OF  LEGISLVTION.  305 

ces  lois.  De  plus,  le  recours  au  legislateur  cntrainerait  des  lon- 
gueurs fatalcs  au  justiciable,"  &c.  a  ^ 

It  folhnvs,  tliat  the  questions  of  constiiiction  before  adverted  to, 
vi/.,  the  nieaning  of  the  terms  eniploj'ed  Ijy  the  legislature,  and 
tlie  cases  to  whic-h  the  ])rovisions  of  tlu;  law  are  a})plicaljle,  must 
be  left  to  the  decision  of  the  judg(.'S.  If  the  judges  of  the  inf;'ri(jr 
courts  are  mistaken  in  their  construction  of  a  law,  tlieir  decision 
must  be  reviewed  and  corrected  by  the  courts  of  superior  jurisdic- 
tion. But  by  what  maxims  are  the  judges  of  both  courts  to  be 
guided  in  their  expositions, — on  what  ground  will  tlieir  deteraiina- 
ti<jns  rest '?  Are  the  courts  to  proceed  upon  estabhshed  prin- 
ciples— to  be  governed  by  fixed  rules ;  or,  exercising  a  liberal  dis- 
cretion, to  have  recourse,  in  douljtful  cases,  to  natural  principles, 
— to  aid  and  to  moderate  the  law  according  to  e(|uitable  consider- 
ations,— to  include  in  tlunr  dehberatious  those  cases  and  circum- 
stances which  the  legislator  himself  would  have  expressed,  had  he 
foreseen  them  ? 

To  an  English  lawyer,  brought  up  with  a  sober  veneration  of 
the  wise  maxim,  (so  consonant  to  the  spirit  of  our  constitution, 
and  so  constantly  to  be  traced  pervading  the  whole  hodj  of  our 
jurisprudence,)  that  "  Opfiinacsf  lex,  qua'  minimum  rdinquit  arhi- 
/riojiulicis;  opt  im  us  judex,  qui  minimum  sibi;''  h  the  question  would 
seem  to  present  little  difficulty.  An  English  judge,  however,  would 
be  in  no  slight  degree  astonished  at  iinding  it  laid  down  as  a 
dogma  of  law,  (as  in  the  fourth  article  of  the  Titro  preliminaire  de 
la  publication  des  Lois :) — "  Le  juge  qui  refusera  de  juger,  sous 
pretexte  du  silence,  de  I'obscimte,  ou  de  I'insuffisance  de  la  loi, 
pouiTa  etre  poursui\d  comma  coupable  de  deni  de  justice."  c  '    On 

a  Discours  Prelimiuaire,  A'c,  p.  20. 

h  Aphorism,  40;  Bacon's  'Works,  vol.  7,  p.  118. 

c  P.  20,  Titre  Preliminaire. 

Note  3. — "To  force  the  magistrate  to  appeal  to  the  legislator,  would  be  to  ad- 
mit the  most  fatal  of  principles;  it  would  be  to  renew  among  us  the  disastrous 
legislation  of  the  Kescripts.  For  when  the  legislator  interferes  to  decide  on 
matters  arising,  or  warmly  agitated  among  private  individuals,  he  is  no  better 
protected  from  surprises,  than  are  the  courts.  AVe  have  less  to  fear  from  a  con- 
trolled, timid,  and  circumspect  decision  of  a  magistrate  who  can  be  reformed,  and 
who  is  liable  to  forfeiture  of  his  place,  than  from  the  absolute,  or  arbitrarj'  de- 
cision of  an  independent  power  which  is  never  respon.sible  to  any  one." 

Law.s  originating  in  private  affairs,  would  be  often  suspected  of  partiality,  and 
they  would  always  be  retroactive  and  unjust  to  those  whose  suit  would  have  pre- 
ceded the  intervention  of  those  laMs.  Moreover,  recourse  to  the  legislator  would 
induce  delays,  fatal  to  the  persons,  amenable,  &c." 

Note  4. — "The  Judge  who  should  refuse  to  decide  under  the  pretext   of   the 
silence,  the  obscuritj',  or  the  insufficiency  of  the  law,  can  be  punished  as  giiilty 
of  a  refusal  to  render  justice." 
39 


30G  BOUNDARIES  OF  LEGISL.VTION. 

wliicli  law  the  foUowing  passage  in  the  Discours  Prehminaire  a 
may  be  considered  as  a  commentary  :— "  Sur  le  fondement  de  la 
maxime  que  les  juges  doivcnt  obeir  aiix  lois,  et  qu'il  leur  est  defen- 
du  de  les  interpreter,  les  tribunanx,  dans  ces  dernieres  annees,  ren- 
renvoyaieut  par  des  referes  les  justiciables  an  pouvoir  legislatif, 
toutes  les  fois  qu'ils  manquaiciut  de  loi,  on  que  la  loi  existante 
leur  paraissait  obscure.  Le  tribunal  do  cassation  a  constamment 
reprime  cet  abus,  comnie  un  deni  de  justice."  ^  From  which  im- 
portant passage  it  is  to  be  collected,  that  even  among  our  enlight- 
ened neighbors,  and  at  a  very  recent  period,  the  boundaries  of 
legislation  and  of  judicial  interpretation  were  so  vaguely  defined, 
and  so  imperfectly  understood,  that  the  Judges  were  constantly 
either  mistaking'the  principles,  or  erring  in  the  application  of 
them. 

The  doctrine  laid  down  in  the  fourth  article  of  the  Titre  Preli- 
minaire,  before  cited,  will  probably  appear  to  the  ordinary  reader, 
even  in  its  present  sliape,  not  a  little  calculated  to  produce  the 
effect  which  the  Consul  Cambaceres  denounced  as  the  probable 
result,  before  the  adoption  of  an  amendment  suggested  by  him  to 
control  it : — "  pent  faciliter  les  usurpations  des  tribunanx  sur  le 
pouvoh-  legislatif."  h  '^  The  explanations,  however,  of  this  article, 
which  were  afforded  during  the  discussion  of  the  irrojet,  are  high- 
ly valuable  :  c 

Le  Ministre  de  la  Justice  dit,  "  qu'il  y  a  deux  sortes  d'intei-pre- 
tations,  celle  de  legislation  et  celle  de  doctrine  ;  que  cette  demiere 
appartient  essentiellement  aux  tribunanx ;  que  la  premiere  est 
celle  qui  leur  est  interdite ;  que  lorsqu'il  est  defendu  aux  juges 
d' interpreter,  il  est  evident  que  c'est  de  V inter jjretation  legislative 
qu'il  s'agit.  II  cite  I'art.  Yll  du  titre  ler  de  I'ordonnance  de  1667, 
qui  defend  aux  juges  d'interpreter  les  ordonnances." 

Le  C.  Tronchet  dit  "  que  Ton  a  abuse,  pour  reduire  les  juges  a 
un  etat  purement  passif,  de  la  defense  que  leur  avait  faite  I'assem- 
blee  constituante,  d'interpreter  des  lois  et  de  reglementer.  Cette 
defense  n' avait  pour  objet  cpie  d'empecher  les  trilDunaux  d'exercer 
une  partie  de  pouvoir  legislatif,  comme  I'avaient  fait  les  anciennes 
cours,  en  fixant  les  sens  des  lois  par  des  interpretations  abstraites 

a  P.  25,  Discours  Preliminaire. 

h  Deiixieme  redaction,  seance  de  14  therm,  an  IX. 

c  Titre  Preliminaire,  p.  28. 

Note  5.—"  On  the  basis  of  the  maxim  that  Judges  ought  to  obey  the  laws,  and 
that  they  are  forbidden  to  interpret  them,  the  courts  of  late  years  have  referred 
those  amenable  to  justice,  to  the  legislative  power,  whenever  the  laws  were  want- 
ing, or  when  the  existing  law  seemed  to  them  obscure.  The  superior  court  has 
constantly  repressed  this  abiise  as  a  denial  of  justice." 

Note  G.  —  "  Can  facilitate  the  usurpations  of  the  courts  over  the  legislative 
power. " 


BOUNDAItlES   OF  LEC;iKLATIOX,  307 

et  geneniles,  on  en  les  supleaut  par  des  aiTcts  tic  reglcniont.  Mais, 
pour  eviter  I'abus  qii'oii  en  a  fait,  il  fant  laisser  an  juge  I'interpre- 
tation,  sans  laquellu  il  no  pent  excrccr  son  ministere.  En  eli'et, 
1(!S  contestations  civiles  portent  sur  les  sens  diflerent  que  cliacune 
(les  parties  })iete  a  la  loi ;  ce  n'est  done  pae  ])ar  nne  loi  nouvcUe, 
laais  par  ro[)inion  du  jnge,  que  la  cause  doit  etre  decidee.  On 
eraint  que  les  juges  n'en  abusent  pour  juger  contra  le  texte  do  la 
loi;  s'ils  sc  le  permettaient,  le  tribunal  do  cassation  aneantii'ait 
Icurs  jugements." 

Le  C.  liEDEitER  dit  "  que  rarticle  IV  donne  trop  do  pouvoir  an 
juge,  en  I'obligeant  de  ]nononcer  memo  dans  le  silence  de  la  loi. 
Il  appartient  au  juge  djap])lixuer  la  loi;  il  no  lui  appartient  pas 
de  remplir  les  laeunes  di;  la  legislation,  quand  la  loi  garde  un 
silence  absolu." 

Le  C.  PoiiTALis  repond  "  quo  le  cours  de  la  justice  scrait  inter- 
ronipu,  s'il  n'etait  pernus  aux  juges  do  prononcer  que  lorsquc  la 
loi  a  parle.  Pen  de  causes  sont  susccptibles  d'etre  dccidees  d'a- 
pres  mie  loi,  d'apres  un  texte  precis  ;  c'est  paries  priucipes  gene- 
raux,  par  la  doctrine,  par  la  science  du  di'oit,  qu'on  a  toujours  pro- 
nonce  sur  la  plupart  des  protestations."  "  En  matiero  criminelle 
](!  juge  ne  doit  prononcer  Cjue  lorsque  la  loi  a  qualifie  de  deKt  le 
fait  (jui  est  defere  a  la  justice,  et  qu'elle  j  attache  une  peine  ;  en 
niatiere  civile,  au  contraire,  le  juge  ne  pent  se  refuser  a  prononcer 
i'.idistinctement  sur  toutes  les  causes  qui  lui  sont  presentees,  parce- 
(jue,  s'il  ne  trouve  pas  dans  la  loi  de  regies  pour  decider,  il  doit 
recouiir  a  I'equitc  natureUe.  Ce  sorait  trop  multiplier  les  lois, 
que  de  les  fairo  naitrc  des  doutes  des  juges."  a  ^ 

a  Titrc  rreliminairc,  p.  27. 

Note  7. — The  minister  of  justice  says,  '*  that  there  are  two  kiucls  of  interpreta- 
tions, that  of  legislation,  and  that  of  doctrine;  that  the  latter  belongs  essentially 
to  the  coiirts;  that  the  former  is  forbidden  to  them;  that  when  the  judges  are  for- 
bidden to  interpret,  it  is  evident  that  it  is  the  Leijislat'ive  Interpretation  that  is 
meant.  He  quotes  Article  VII  of  the  first  act  of  the  ordinance  of  1G67,  which  for- 
l)ids  the  judges  to  interpret  the  ordinances.  Trouchet  saj's,  that  in  order  to  re* 
duce  the  judges  to  a  state  of  purely  passive,  there  has  been  au  abuse  of  the  pro- 
hibition put  upon  them  by  the  Cousituent  Assemblj',  of  interpreting  the  laws  and 
making  nilings.  This  prohibition  had  for  its  object  only  to  prevent  the  courts 
from  exercising  a  part  of  the  legislative  power,  as  the  older  courts  had  done,  by 
lixiug  the  sense  of  the  laws  by  abstract  and  general  interpretations,  or  by  sujipli- 
inenting  them  by  rulings.  But  in  order  to  prevent  the  abuse  that  has  been  made 
of  it,  one  must  leave  to  the  judge  the  interpretation,  without  Mhich,  he  cannot 
exercise  his  functions.  In  truth,  civil  disinites  depend  on  the  different  sense  that 
each  of  the  parties  gives  to  the  law;  it  is  not  therefore  by  a  new  law,  but  by  the 
opinion  of  the  judge,  that  the  case  ought  to  be  decided.  It  is  feared  that  the 
judges  may  abuse  this  in  order  to  decide  against  the  text  of  the  law;  if  they  per- 
mitted themselves  to  do  this,  the  superior   courts  would  amend  their  decisions." 


308  BOUXD.UIIES  OF  LEGISLATION. 

It  is  necessary  to  bear  these  explanations  in  mind,  in  perusing 
tlie  following  passages  from  the  masterly  discourse  prefixed  to 
these  Diticufisions  ,s«r  le  Code  Civil;  and  it  is  not  less  important  to 
remember  that  in  all  ciyihzed  countries,  except  England,  the 
United  States  of  America,  and  ancient  Eomc,  the  jurisdiction  of 
common  law  and  of  equity  has  been  committed  to  the  same  courts, 
and  that,  by  blending  laAv  and  equity  together,  greater  latitude  is 
given  to  the  judges  in  matters  of  property  to  modify  the  laws,  in 
order  to  meet  the  purj^oses  of  justice  in  particular  cases,  than 
where  the  judges  are  bound  by  settled  rules.  "With  us,  even  in 
the  courts  of  equity,  which  are  supposed  in  some  instances  to  ad- 
mit of  determinations  according  to  conscience,  and  arhifriiim  boni 
viri,  ^  but  which  really  act  upon  settled  principles,  it  has  been  a 
question  with  enlightened  lawyers  how  far  this  most  liberal  de- 
scription of  equitable  jurisdiction  should  be  at  any  time  permitted  ; 
and  whether  courts  of  equity  ought  not  to  be,  in  all  cases,  governed 
by  general  niles.  On  the  one  hand  it  is  admitted,  that  if  this 
were  the  case  the  consequence  would  inevitably  follow,  that  a 
judge  would  sometimes  be  bound  to  pronounce  decress  which 
would  be  materially  unjust ;  since  no  rale  can  be  equally  just  in 
the  apphcation  to  a  whole  class  of  cases,  that  are  far  from  being 
the  same  in  every  circumstance.  But  on  the  other  hand  it  has 
been  thought,  that  even  this  dreadful  evil  should  be  tolerated,  to 
avoid  a  gi-eater^that  of  rendering  judges  arbitrary,  and  their  de- 
crees so  fluctuating,  that  the  public  could  never  trust  to  them  as  a 
rule  of  conduct,  a 

The  observations  of  Lord  Hardwicke  upon  this  subject,  (of  the 
estabhshment  of  general  rules  m  our  courts  of  equity,)  are  en- 

Eaederer  says,  "  that  Art.  IV  gives  too  much  jjower  to  the  judge,  by  obliging 
him  to  decide  even  in  the  silence  of  the  law.  It  belongs  to  the  judge  to  apply 
the  law;  it  does  not  belong  to  him  to  fill  the  chasms  of  legislation  when  the  law 
observes  an  absolute  silence." 

Portalis  replies,  "  that  the  course  of  justice  would  be  interrupted  if  it  were  only 
permitted  to  the  judges  to  decide  where  the  law  has  spoken.  Few  causes  are 
susceptible  of  being  decided  according  to  precise  law  and  text;  the  greater  part 
of  disputes  have  always  been  decided  by  general  i^riuciples;  by  doctrine,  and  by 
the  science  of  law.  In  criminal  matters,  the  judge  must  only  decide  where  the 
law  has  designated  as  a  crime,  the  deed  which  is  remanded,  (or  deferred),  to  jus- 
tice, and  when  it  attaches  a  penalty  to  it.  In  civil  matters,  on  the  contrary,  the 
judge  cannot  refuse  to  pronounce  indiscriminately  on  all  the  causes  presented  to 
him,  because  if  there  are  in  the  law  no  rules  by  which  to  decide,  he  must  have 
recourse  to  natural  equity.  To  let  the  laws  spring  from  the  doubts  of  the  judges, 
would  be  to  multiply  them  undul}'." 

a  Lord  Karnes'  Principles  of  Equity. 

•  Story  well  explains  the  arUirlum  honi  virl,  by  the  "  Vlr  bomis  est  quis  ?  Qui 
cohsuUa  patrum,  qui  le/jes  jnraqve  servai."  Eq.  J.  vol.  1,  p.  13.  Courts  of  Equity 
are  a.s  much  bound  by  precedents,  as  Courts  of  Law. 


BOUNDARIES  OF  LEGISLATION.  309 

titled  to  great  attention,  and  Lis  remarks  upon  the  subject  of 
frauds  seem  quite  conclusive  upon  that  part  of  the  subject. 
"Some  general  rules  there  ought  to  be,  for  otherwise  the  gi'eat  in- 
convenience of  jus  vutjioii  cl  inreiiniii  will  follow  ;  and  yet  the 
Fra'tor  must  not  be  so  absolutely  and  invariably  bound  by  them, 
as  the  judges  are  by  the  rules  of  the  common  law.  In  the  con- 
stiiiction  of  trusts,  •which  are  one  great  head  of  equity  jurisdiction, 
the  rales  are  pretty  well  ascertained ;  so  they  are  ui  cases  of  re- 
demption of  moiigages,  which  makes  another  gi'etit  branch  of  thiit 
business.  But  as  to  relief  against  frauds,  no  invariable  rules  can 
be  estabhshed.  Fraud  is  infinite,  and  were  a  court  of  equity  once 
to  lay  down  rules  how  far  they  would  go,  and  no  further,  in  ex- 
tending their  relief  against  it,  or  to  define  strictly  the  species  or 
evidence  of  it,  the  jurisdiction  would  be  cramped,  and  peii^etually 
eluded  by  new  schemes,  which  the  fertility  of  man's  invention 
would  contrive."  a 

In  the  same  letter,  but  in  the  handling  of  a  different  topic, 
(which  will  be  the  subject  of  notice  hereafter,)  Lord  Hardwicke 
expresses  a  decided  feeling  against  a  measure,  the  tendency  of  which 
would  be  to  make  the  judges  of  the  common  law,  law-makers  in 
matters  of  property.  Not  so,  mnfafis  tnutondiH,  the  French  codi- 
fiers  ;  by  whom  some  contempt  is  indicated  for  the  practical  wis- 
dom of  those  "  qui  osent  prescrire  imperieusement  au  legislateur 
la  teii'ible  tache  de  ne  rien  abandonner  a  la  decision  du  juge."  * 

a  Letter  to  Lord  Karnes;  Jjonl  Wooilbonselee's  Memoirs  of  the  Life  and  Writ 
ings  of  Lord  Karnes;  Parke's  History  of  the  Court  of  Chancery,  Appendix,  No.  -1 

Note  8. — "Who  dare  imperatively  to  prescribe  to  the  legislator,  the  terriblu 
task  of  abandoning  nothing  to  the  decision  of  the  Jiidge."  "  Whatever  we  may 
do  proceeds  this  same  prolmmd  and  analytic  discourse,  positive  laws  can  never 
entirely  take  the  place  of  natural  reason  in  the  affairs  of  life.  The  wants  of  so- 
ciety are  so  varied  ;  the  intercourse  ot  men  is  so  active  ;  their  interests  are  so 
multiplied,  and  their  relations  so  extended,  that  it  is  impossible  for  the  legislator 
to  provide  for  every  thing.  In  the  very  matters  which  esi^ecially  engage  his  at- 
tention, there  is  a  crowd  of  details  which  escai^e  him,  or  which  are  too  conflic- 
ting and  too  changing  to  become  the  subject  of  clearly  expressed  letter  of  the 
law." 

A  multitude  of  things  is  then  necessarily  left  to  the  rules  of  custom  ;  to  the 
discussion  of  learned  men,  or  to  the  arbitrary  decision  of  Judges. 

The  office  to  be  performed  by  the  law  then,  is  to  settle  by  broad  views,  the  gen- 
eral maxims  of  law  ;  to  establish  principles,  productive  of  uniform  consequences; 
and  not  to  descend  into  the  details  of  the  questions  which  may  arise  on  every 
occasion. 

It  is  the  duty  of  the  magistrate,  and  the  la^\-yer,  imbued  with  the  general  spirit 
of  the  laws,  to  direct  its  application. 

Hence,  among  all  civilized  nations,  we  always  see  formed  by  the  side  of  the 
sanctuary  of  the  laws,  and  under  the  controlling  guidance   of  the   legislator,    a 


310  FRENCH  JUEISrRUDENCE. 

"  Quoi  que  Ton  fasse;"  proceeds  tlie  same  profound  and  analy- 
tical discourse,  a  "  les  lois  positives  ne  sauraient  jamais  entiere- 
ment  remplacer  I'usage  de  la  raison  natnrelle  dans  les  affaires  de 
la  vie.  Les  besoins  de  la  societe  sont  si  varies,  la  communication 
des  liommes  est  si  active,  leurs  interets  sont  si  multiplies  et  leurs 
rapports  si  etendus,  qu'il  est  impossible  au  legislateiu'  de  pourvoir 
a  tout.  Dans  les  matieres  meme  qui  fixent  particulierement  son 
attention,  il  est  une  foule  de  details  qui  lui  echappent,  ou  qui  sont 
trop  contentieux  et  trop  mobiles,  pour  pouvoir  devenir  I'objet  d'un 
texte  de  loi." 

"  Une  foule  de  choses  sont  done  necessairement  abandonnes  a 
I'eni  pire  de  I'usage,  a  la  discussion  deshommes  instmits,  a  1' arbi- 
trage des  juges." 

"  L'oiiice  de  la  loi  est  de  fixer,  par  de  grandes  vues,  les  maximes 
generales  de  droit ;  d'etablir  des  principes  feconds  en  conse- 
quences, et  non  de  descendre  dans  le  detail  des  questions  qui 
peuvent  naitre  sur  cliaque  matiere." 

"  C'est  au  magistrat  et  au  jurisconsulte,  penetres  de  I'esprit  ge- 
neral des  lois,  a  en  diriger  I'application." 

"  De  la,  cliez  toutes  les  nations  policees,  on  voit  toujours  se  for- 
mer, a  cote  du  sanctuaire  des  lois,  et  sous  la  surveillance  du  legis- 
lateur,  un  depot  de  maximes,  de  decisions,  et  de  doctrine,  qui  s'e- 
pure  journellement  par  la  pratique  et  par  le  clioc  des  debats  juxli- 
ciaires,  qui  s'accroit  sans  cesse  de  toutes  les  connaissances  acquises, 
et  qui  a  constamment  ete  regarde  comme  le  vrai  supplement  de 
legislation." 

"  II  serait,  sans  doute,  desirable  que  toutes  les  matieres  pussent 
etre  reglees  par  des  lois." 

"  Mais  a  defaut  de  texte  precis  sur  cliaque  matiere,  un  usage 
ancient,  constant  et  bien  etabli,  une  suite  non  interrompue  de  de- 
cisions semblables,  une  opinion  et  une  maxime  recue,  tiennent  lieu 
de  loi.  Quand  on  n'est  derige  par  rien  de  ce  qui  est  etabli  ou 
connu,  quand  il  s'agit  d'un  fait  absolument  i^ouveau,  on  remonte 
aux  principes  du  droit  naturel.  Car,  si  la  prevoyance  des  legisla- 
teurs  est  limitee,  la  nature  est  infinie ;  elle  s' applique  a  tout  ce 
qui  pent  interesser  les  liommes." 

"  Pour  combattre  I'autliorite  que  nous  reconnaissons  dans  les 
juges  de  statuer  sur  les  clioses  qui  ne  sont  pas  determinees  par  les 
lois,  on  invoque  le  droit  qu'a  tout  citoyen  de  n'etre  juge  que  d'a- 
pres  une  loi  anterieure  et  constante.  Ce  droit  ne  pent  etre  me- 
connu.     Mais  pour  son  application,  il  faut  distinguer  les  matieres 

a  Discours  Prelim  inaire,  p.  20. 
fund  of  maxims,  of  decisious  and  of  doctrine,  which  is  daily  sifted   by  practice, 
and  the  collision  of  judicial  debates,  incessantly  increasing  by  all  the  knowledge 
acquired,  and  v/hich  has  constantly  been  regarded  as  the   true   supplement   of 
legislation. 

It  would  doubtless  be  desirable,  that  all  cases  should  be  decided  by  laws. 


FRENCH  JURISPRUDENCE.  311 

crimiaelles  d'avec  les  matieres  civilos,"  etc  "  En  matiere  crimi- 
nelle,  ou  il  n'y  a  qu'iin  texto  forniol  et  pre-existaiit  qui  puissc  fon- 
der Taction  du  jugo,  il  faut  des  l(ns  ])recises  et  jjoint  de  jurispru- 
dence. II  en  est  autrement  en  niaticre  civile  :  la,  ilfautune  juris- 
pnidence,  parcequ'il  est  impossible  de  regler  tons  les  objects  civils 
par  des  lois." 

"  Quand  la  loi  est  claire,  il  faut  la  suivrc  ;  quand  elle  est  ob- 
scure, il  faut  en  approfondir  les  dispositions.  JSi  Ton  manque  de 
loi,  il  faut  consulter  I'usage  ou  I'equite.  L'equite  est  le  retour  a 
la  loi  naturello,  dans  le  silence,  I'opposition,  ou  I'obscurite  des  lois 
positives." 

The  tenor  of  these  passages,  (for  the  citation  of  Avhich,  from  so 
interestmg  a  work,  no  apology  is  considered  necessary  to  the  in- 
telligent reader,)  may  perhaps  be  thought,  m  some  measure,  to 
contirm  Bacon's  sagacious  opinion: — " Apud  nonnullos  receptum 
est,  lit  juriscUdio  qiuv  decernit  secundinii  cquum  et  honum,  atque  ilia 
cdtera  quce  jorocedit  secundum  j us  stridum,  nsdein  curiis  deputenfur  ; 
apud  alios  autem,  ut  diuersis: — Omnino  i^lacet  curiarum  separafio. 
Ncque  enim  scrvabitur  distindio  casuurn,  si  fiat  commixtio  jurisdic- 
iionum  ;  scd  urhitrium  legem  tandem  trahet.''  a  Even  as  it  is,  when 
the  jurisdictions  are  separate,  does  not  this  efiect  appear  to  be 
jiroduced ;  cirbitrium  legem  traliere?  how  has  the  statute  law  been 
dealt  with  ? 

Where  so  much  is  left  to  the  discretion  of  the  Judges,  it  is  desi- 
rable to  know  whether  any  rules  are  prescribed  for  their  govern- 
ment, and  the  guidance  of  that  extensive  discretion. 

a  De  Aug.  Scient.  lib.  8,  c.  3  apb.  45. 

"  But  in  tlelault  of  a  precLse  tlirectiou  for  every  case,  ancient  customs  con- 
stant and  well  established;  an  uninterrupted  series  of  similar  decisions;  opin- 
ions, or  received  maxims,  take  the  place  of  law.  When  we  are  directed  by  nothing 
that  is  established  or  known  ;  when  a  case  absolutely  new  occurs,  we  go  back  to 
the  princii)les  of  natural  law.  For  if  the  foresight  of  the  legislator  is  limited, 
nature  is  infinite,  and  her  rights  apply  to  all  that  can  interest  mer .' 

"To  contest  the  authority  that  we  acknowledge  in  Judges  of  decnling  things 
that  are  not  determined  by  the  laws,  we  appeal  to  the  right  of  every  citizen  of 
being  judged  only  in  accordance  with  an  anterior  and  fixed  law.  This  claim 
cannot  be  ignored,  but  for  its  application  we  must  distinguish  between  civil  and 
criminal  cases,  etc." 

"  In  criminal  matters,  where  there  is  only  a  formal  and  pre-existing  text  which 
can  s\istain  the  action  of  the  Judge,  precise  laws  are  needed,  and  no  jurispru- 
dence. It  is  otherwise  in  civil  matters  ;  there  jurisprudence  is  needed,  because 
it  is  impossible  to  settle  all  civil  cases  by  the  laws." 

"When  the  law  is  clear  it  must  be  followed  ;  when  it  is  obscure,  its  intent 
must  be  investigated.  In  the  absence  of  law  we  must  consult  custom  or  equity. 
Equity  is  the  return  to  natural  law  in  the  silence  ;  in  the  opposition,  or  in  tho 
obscurity  of  the  positive  laws." 


312  BOUNDARIES  OF  LEGISLATION. 

Tlie  introductory  discourse,  so  often  already  quoted,  observes 
upou  this  head,  and  very  judiciously  -.a  " II  est  trop  heureux  qu'il 
y  ait  des  recueils,  et  une  tradition  suivie  d'usages,  de  maximes,  et 
de  regies,  pom-  que  Ton  soit,  en  quelque  sorte,  necessite  a  juger 
aujourd'hui,  connue  on  a  juge  hier,  et  qu'il  n'y  ait  d'autrss  varia- 
tions dans  les  jugemcnts  publics,  que  celle  qui  sont  amenees  par 
li^  progres  des  lumieres  et  par  la  force  des  circonstances."  Again, 
and  more  emphatically  :h  "Le  pouvoir  judiciaire,  etabhe  pour  ap- 
pliquer  les  lois,  a  besoin  d'etre  dirige  dans  cette  apphcation  par 
certaines  regies.  Nous  les  avons  tracees  :  elles  sont  telles,  que  la 
raison  particuliere  d'aucun  liomme  ne  puisse  jamais  prevaloir  sur 
hi  loi,  raison  publique."  ^ 

Lastly,  (and  no  longer  mediately,  but  directly  affecting  the  sub- 
ject under  consideration,  viz.,  the  boundaries  of  legislation  and  of 
judicial  interpretation,)  the  same  dissertation  proceeds  :  "  En  effet, 
la  loi  statue  sur  tons  :  elle  considere  les  hommes  en  masse,  jamais 
comme  particuliers  ;  elle  ne  doit  point  se  meler  des  faits  indivi- 
duels,  ni  des  litiges  qui  divisent  les  citoyens.  S'il  en  etait  autre- 
ment,  il  faudrait  journellement  fake  de  nouvelles  lois  :  leur  multi- 
tude etoufferait  leur  dignite  et  nuirait  a  leur  observation.  Le 
jurisconsulte  serait  sans  fonctions,  et  le  legislateur,  entraine  par 
les  details,  ne  serait  bientot  plus  que  jurisconsulte.  Les  interets 
particuliers  assiegeraient  la  puissance  legislative ;  ils  la  detourne- 
raient,  a  chaque  instant,  do  I'interet  general  de  societe." 

"  II  y  a  une  science  pour  les  legislateurs,  comme  il  y  en  a  un 
pour  les  magistrats  :  et  I'une  ne  ressemble  pas  a  1' autre.  _La  sci- 
ence du  legislateur  consiste  a  trouver  dans  chaque  matiere  les 
principes  les  plus  favorables  au  bien  commun  :  la  science  du  ma- 
gistrat  est  de  mettre  ces  principes  en  action, — de  les  ramifier, — 
de  les  etendre,  par  une  application  sage  et  raisonee,  aux  hypo- 
theses privees  ;  d'etudier  I'esprit  de  la  loi  quand  la  lettre  tue  ;  et 
de  ne  pas  s'exposer  au  risque  d'etre,  tour  a  tour,  esclave  et  rebelle, 
et  de  desobeir  par  esprit  de  servitude."  c '" 

It  cannot  be  denied,  that  these  extracts  given  from  the  "  Bis- 

a  Tit.  Prel.  p.  23.  ?>  P.  31.  c  P.   27. 

Note  9. — "It  is  very  fortunate  that  there  are  collections,  and  respected  tradi- 
tions of  customs,  maxims  and  rules,  that  we  may  in  some  manner  be  obliged  to 
judge  to  day  as  we  judged  yesterday  ;  and  that  there  are  no  other  variations  in 
public  judgments,  than  those  which  are  induced  by  the  progress  of  knowledge 
and  the  force  of  circumstances." 

"  The  judicial  power  established  to  apply  the  laws,  needs  to  be  directed  in 
this  application  by  certain  rules  ;  we  have  marked  them  out ;  they  are  such  that 
the  primfe  judgment  of  no  man,  can  ever  prevail  over  the  law;  over  pwWic  judg- 
ment." 

Note  10.— "In  reality,  the  law  decides  equally  in  regard  to  all ;  it  considers 
men  in  the  aggregate  ;  never  as  individuals  ;  it  must  not   meddle  with  individual 


BOUNDARIES  OF  LEGISLATION.  313 

cours  Preliminairc  du  Premier  Projet  de  Code  Civil"  "  contain  a 
very  particular  and  oven  minute  enumeration  of  the  duties  of  the 
judge;  but  it  may  be  thought  to  1)0  still  opon  to  inquiry,  Avhat 
are  the  functions  of  the  le<^islatorV  The  province  of  the  legislator 
is  shadowtMl  out  in  tlie  following  passages,  indistinctly  indeed, — 
without  relief,  and  in  a  manner  wanting  the  bold  and  consistent 
aspect  presented  by  the  other  part  of  the  work. 

"II  faut  que  le  legislateur  veille  sur  la  jurispi-udence ;  il  peut 
etre  eclaire  par  elle,  et  il  peut  de  son  cote  la  corriger  ;  mais  il  faut 
qu'il  y  en  ait  une." 

"  C'est  a  I'experiencc!  a  combler  successivement  les  vides  que 
nous  laissons." 

"  Les  codes  des  peu])les  se  font  avec  le  temps  ;  mais  a  propre- 
ment  parler,  on  ne  les  fait  pas."(f  '■ 

With  us  it  has  been  shown  to  be  the  duty  of  the  judges,  Mliere 
a  case  occurs  which  Avas  not  foreseen  by  the  legislature,  to  declare 
it  casus  omissus  ;  or  where  the  intention,  if  entertained,  is  not  ex- 
pressed, to  say  of  the  legislature,  (/nod  voluif,  nan  dixit ;  or  where 
the  case,  thoiigli  within  the  mischief,  is  not  clearly  within  the 
meaning;  or  whei'e  tlu^  words  fall  short  of  the  intent, — or  go  be- 
yond it ;— in  every  such  case  it  is  held  the  duty  of  the  judge,  in  a 
land  jealous  of  its  liberties,  to  give  eflect  to  the  expressed  sense,  or 
words,  of  the  law,  m  the  order  in  which  they  are  found  in  the  act 
and  according  to  their  fair  and  ordinary  import  and  understanding. 

As  to  deciding  contrary  to  the  plain  words  of  an  act  of  parlia- 
ment,— as  to  holding  that  the  legislature  did  not  mean  what  it  has 

acts,  uor  with  dispiitos  that  divide  citizens.  If  it  were  otherwise,  it  would  daily 
be  necessary  to  make  new  hxws  ;  their  number  would  destroy  their  influence,  and 
interfere  with  their  observance.  The  lawyer  would  be  without  functions,  and  the 
legislator,  involved  in  details,  would  soon  be  nothing  more  than  the  lawyer. 
Private  interests  would  besiege  legislative  power;  they  would  incessantly  turn  it 
aside  from  the  general  interest  of  society." 

"  There  is  a  science  for  legislators,  as  there  is  one  for  magistrates,  and  the  one 
does  not  resemble  the  other.  The  science  of  the  legislator,  consists  in  finding  in 
each  case  the  principles  most  favorable  for  the  common  welfare  ;  the  science  of 
the  magistrate,  is  to  put  these  principles  in'  action, — to  ramify  them, — to  extend 
them  by  a  wise  and  thoughtful  application  to  private  assumptions  ;  to  study  the 
spirit  of  the  law  when  the  letter  destroys,  and  not  to  expose  himself  to  the  risk  of 
being  by  turns  slave  and  rebel  ;  and  to  disobey  in  the  spirit  of  servitude." 

a  P.  27. 

Note  11. — "  Introducting  Discourse  on  the  First  Division  of  the  Civil  Code.'' 

Note  12. — "The  legislator  must  watch  over  jurisprudence  ;  he  can  be  enlight- 
ened by  it,  and  he  can  on  his  part  correct  it ;  but  there  must  be  a  jurisprudence. 
It  devolves  on  experience  successfully  to  fill  the  voids  that  it  leaves.    The  codes  oi 
nations  are  said  to  be  formed  by  time;  but  properly  speaking  they  are  not  formed." 
40 


314  BOUNDARIES  OF  LEGISLATION. 

■unequivocally  expressed, — it  may  be  observed  that  if  with  decided 
cases,  the  maxim  of  law  be,  (as  it  incontrovertibly  is,)  stave^  deems, 
if  the  courts  feel  themselves  bound  by  the  positive  authority  of  a 
solemn  determination  of  the  same  question  by  former  _  judges  ;  a 
fortiori  ought  they  to  be  concluded,  by  the  more  positive  author- 
ity of  an  act  of  parliament. 

The  duty  of  the  judge  is  to  adhere  to  the  legal  text,  and  not  to 
ti-a-vel  out  of  Avhat  that  expressly  or  impliedly  contains.  In  the 
interpretation  of  the  letter,  if  difficulties  occur,  he  is  to  look  to 
the  spuit  and  object,  and  to  be  guided  by  the  rules  and  the 
examples,  which  it  has  been  a  principal  object  of  this  work  to 
collect,  to  compare,  and  to  expound. 

The  legislator  also,  has  his  solemn  duties.  He  is  called  upon, 
no  doubt,  to  watch  over  both  the  jurisprudence  and  the  judica- 
ture of  his  coimtry ;  to  detect  the  deficiencies  of  the  one,  and  to 
correct  the  excesses  of  the  other.  He  is  also  to  note  his  own  mis- 
calculations and  failures,  and  to  fill  up  the  voids  he  has  before 
left,  as  said  by  the  French  juris-consults.  Where  there  has  been 
an  omission  m  an  act, — or  Avliere  his  intention  has  been  miscon- 
ceived, and  the  remedy,  in  consequence,  carried  too  far,  or  not 
given  full  effect  to,  he  may  supply  desiderata,  may  state  his  own 
meaning  with  greater  precision,  and  guard,  for  the  future,  against 
an  application  of  the  remedy  more  extensive  than  the  intention. 
But — poor  and  limited  would  be  his  sphere,  were  it  confined  to 
these  functions.  The  higher  provmce  and  duty  of  the  legislator, 
is  to  exercise  a  surveillance  over  something  more  than  the  mere 
judicature  of  the  country, — over  the  objects,  as  well  as  the  admin- 
istration, of  the  laws, — over  the  history  of  man  and  the  progress  of 
society.  Silently  but  vigilantly  is  it  incumbent  upon  him  to  watch 
the  spirit  of  the  age, — the  growth  of  feelings, — the  development  of 
principles, — the  changes  of  every  kind  produced  by  time, — the 
demand  for  different  laws  to  protect  newly-created  species  of 
property, — the  instances  in  which  society  is  found  lamenting  the 
want  of  a  law  adapted  to  existing  circumstances, — the  cases  in 
which  it  is  felt  to  be  disturbed  by  laws  utterly  unsuitable, — the 
retention  of  antiquated  forms — or  the  infliction  of  unprofitable 
severities. 

These  powers  and  duties,  as  explained  by  the  English  and 
French  theories,  are  under  a  system  where  the  legislative  power 
is  little  short  of  absolute  sovereign  power.  There,  the  powers  ot 
a  judiciary,  are  tnily,  in  degree,  under  the  surveillance  of  the 
legislator.  Cinder  the  American  theory,  the  powers  of  the  legis- 
lature, are  limited  by  written  constitutions,  beyond  the  bound  of 
which  they  may  not  pass,  and  it  is  conferred  upon  the  com'ts  of 
justice  to  declare  all  legislation  void,  which  is  in  excess  of  the 


AMERICAN  THEORY.  315 

fundamental  Jaw.  The  complete  independence  of  the  courts  of 
justice,  is  the  essential  and  peculiar  feature  in  our  system.  The 
limitations  of  legislative  power,  can  be  preserved  in  no  other  way 
than  through  the  medium  of  the  courts  of  justice.  It  is,  and  must 
be,  the  duty  to  declare  void,  all  acts  of  the  legislature  which  are 
contrary  to  tlie  manifest  tenor  of  the  constitution.  "Without  this, 
aU  the  reservations  of  particular  rights  and  privileges  would  amount 
to  nothing. 

It  has  been  charged,  by  those  wIk^so  minds  are  imbued  with 
the  idea  of,  the  perfection  of  the  English  and  French  sj'stems  of 
government,  that  tliis  power  of  the  courts  in  our  system  implies  a 
superiority  of  the  judiciary  to  the  legislative  power ;  that  the 
power  to  declare  an  act  void,  must  necessarily  be  superior  to  the 
power  whose  acts  are  declared  void.  Whatever  may  be  the  logic 
of  this  proposition,  practically,  there  is  no  superioiity  of  one  co- 
ordinate departniont  of  the  government  over  another. 

We  have  shown  i:i  a  subsequent  chapter,  a  that  the  sovereign 
power  of  our  governments,  is  distributed  into  three  equal  and 
co-ordinate  departments  of  power ;  each  distinct  from,  and  inde- 
pendent of  the  other,  each  having  power  to  act,  only,  within  pre- 
scribed limits ;  and  each,  being  sovereign  while  exercising  its  own 
powers  within  its  proper  si:)here,  but  each  Limited  in  its  power,  by 
the  constitution.  It  follows  fi-om  this,  that  if  the  legislature  pass 
an  act  contrary  to  the  constitution,  such  act  is  void.  It  would  be 
an  imbecile  and  useless  government,  that  did  not  possess  the  power 
to  control  its  several  departments  in  the  exercise  of  a  conferred 
and  Umited  power.  "  To  deny  these  propositions,  would  be  to 
affirm,  that'  the  deputy  is  greater  than  his  principal ;  and  the 
servant  above  his  master ;  that  the  representatives  of  the  people 
are  superior  to  the  people  themselves  ;  that  men  actuig  by  virtue 
of  powers,  may  do,  not  only  what  their  powers  do  not  authorize, 
but  what  they  forbid.'7> 

By  no  provision  of  the  constitution,  are  the  legislature  the  con- 
stitutional judges  of  their  oavu  powers ;  they  cannot  set  up  their 
will,  against  the  guaranteed  rights  of  their  constituents.  It  is  far 
more  reasonable  to  suppose,  that  the  judicial  power  was  intended 
to  stand  between  the  people  and  the  legislature,  in  order  to  keep 

a  Chap.  10.  b  Federalist  Letter,  78. 


316  AMERICAN  THEORY. 

the  latter  within  the  bounds  assigned  to  them  by  the  constitution. 
The  interpretation  of  the  laws,  is  the  peculiar  pro^ince  of  the 
courts.  The  constitution  is,  in  fact,  and  must  be,  regarded  by 
judges,  as  fundamental  hue.  It  therefore  belongs  to  them,  to  ascer- 
tain its  meaning,  as  well  as  of  any  particular  act  proceeding  from 
a  legislative  body.  If  there  should  happen  to  be  an  irreconcilable 
variance  between  the  constitution,  and  the  statute,  that  which  has 
the  superior  obhgation  and  validity,  ought  to  be  preferred  to  the 
other  ;  the  intention  of  the  people,  to  the  intention  of  theh  agents,  a 

Nor  does  this  conclusion  by  any  means  suppose  a  superiority  of 
the  judicial  to  the  legislative  power.  It  only  supposes  that  the 
power  of  the  people  is  superior  to  both  ;  and  that  where  the  will 
of  the  legislature,  declared  iii  its  statutes,  stands  in  opposition  to 
that  of  the  people  declared  in  the  constitution,  the  judges  ought 
to  be  governed  by  the  latter,  rather  than  by  that  which  is  not  fun- 
damental. 

This  exercise  of  judicial  discretion  in  determining  between  two 
contradictory  laws,  is  not  an  uncommon  occurrence.  Take  the 
case  of  two  statutes  existing  at  one  time,  clashing  in  whole  or  in 
part  with  each  other,  and  neither  of  them  containing  any  repeal- 
ing clause  or  expression.  In  such  case,  it  is  the  conceded  province 
of  the  court  to  determine  their  meaning  and  ojseration.  So  far  as 
they  can,  by  any  fair  construction  be  reconciled  to  each  other, 
reason  and  law  consphe  to  dictate  that  this  should  be  done ;  when 
that  is  impracticable,  it  becomes  a  matter  of  necessity,  to  give 
effect  to  one,  in  exclusion  of  the  other.  The  rale  which  has  ob- 
tained in  the  courts  for  determining  their  relative  validity,  is,  that 
the  last  in  order  of  time,  shall  be  preferred  to  the  first.  But  this 
is  a  mere  rule  of  construction,  not  derived  from  any  positive  law, 
but  from  the  nature  and  reason  of  the  thing.  It  is  a  rule  not  en- 
joined upon  the  courts  by  legislative  provision,  but  adopted  by 
themselves,  as  consonant  to  truth  and  propriety,  for  the  direction 
of  theu'  conduct  as  interpreters  of  the  law. 

It  can  be  of  no  weight  to  say,  that  the  courts,  upon  a  pretense 
of  repugnancy,  may  substitute  their  own  pleasure,  for  the  consti 
tutional  intentions  of  the  legislatm'e.     This  might  as  well  happen 
in  the  case  of  two  contradictory  statutes ;  or,  it  might  as  well  as 

aid. 


POWER  OF  JURISPRUDENCE.  317 

happen  in  every  adjudication  upon  any  single  statute.  The  courts 
^nust  declare  tlie  sense  of  the  law ;  and  if  they  should  be  disposed 
to  exercise  iciJI,  instead  of  jwhjment,  the  consequence  "would  be 
equally  the  substitution  of  their  pleasure,  to  that  of  the  legislative 
l)()dy.  The  oltjection  to  tlie  exercise  of  this  jjower  by  the  courts 
of  justice  upon  this  ground,  if  it  would  prove  anything,  would 
prove  that  there  ought  to  be  no  judges,  chstinct  from  that  body, 
or  in  other  words,  that  the  legislative  body  ought  to  possess  also, 
jucheial  powers,  a  The  powers,  legislative  and  judicial,  in  the 
same  hands,  with  no  check  or  control  other  than  their  own  will, 
might  be  pronounced  the  very  best  definition  of  tp-rany. 

It  is  now  comparatively  rare  that  rules  of  universal  and  constant 
operation  are  laid  down  l)y  statutes.  In  former  times,  a  simple, 
general  rule  was  enounced,  Avith  a  corresponding  simplicity  of  ex- 

t)ression,  and  the  praise  of  tin;  ancient  lawgiver  was  considered  to 
)e,  in  the  words  of  Lord  Coke,  that  "  prudent  antiquity  included 
much  matter  in  few  words."  h  But  such  statute  law  could  not 
maintain' an  unbending  character.  Its  harshness  would  have  been 
intolerable,  if  indiseriminating,  general  rules  could  not  have  been 
mitigated  by  judicial  construction,  in  cases  where  they  produced 
;in  luiintended  injury  or  oppression.  In  those  times,  the  unques- 
tionable use  and  advantage  of  interpretative  legislation  was,  that 
it  modified  and  adapted  the  law  to  special  cases,  and  the  sages  of 
the  law  are  accordingly  and  justly  commended  for  the  improve- 
ments they  by  these  means  efiected  in  the  institutions  of  the 
country. 

No  intelhgent  man  will  deny  that,  with  us,  the  laws  have,  in  a 
succession  of  ages,  been  gradually  adapted  to  the  free  institutions 
of  the  coimtr}'.  Beyond  all  question,  we  are  extensively  mdebted 
to  the  liberality  of  the  judges,  for  much  of  the  regulated  freedom 
we  at  present  enjoy. 

Again,  no  reflecting  man  can  fail  to  perceive  that  there  has  been 
the  gi'eater  facihty  in  making  this  adaptation,  in  so  far  as  our  laws 
were  unwritten,  or  part-wiitten,  and  therefore,  in  a  certain  sense, 
unascertained.  So  far,  good  has  unquestionably  resulted  fi'om  our 
laws  being  in  an  unsettled  state,  and  propounded  in  generalities. 
From  not  bemg  more  formally  prescribed,  the  laws  were  less  cer- 
tain— fi-om  being  less  certam,  they  admitted  of  being  rendered 
more  complete. 

It  is  the  character  of  modern  legislation,  that  it  applies  itself  to 
j:)articular  cases,  and  classes  of  cases,  and  endeavors  to  adjust  the 
law  to  their  varieties,  and  to  determine  specifically  every  kind  of 
right  and  every  corresponding  obligation.     It  is  not  easy  to  esti- 

ald.  hi  Inst.  306— id.  401. 


318  POWER  OF  JUEISrEUDENOE. 

mate  the  practical  importance  of  specific  legislation,  in  adjusting 
our  law  to  the  various  interests  of  the  communit}'.  But  one  of 
its  eliects  has  certainly  been  to  put  an  end  to  verbal  generahties 
in  propounding  the  law,  though  the  draftsman  may  not  invariably 
succeed  in  his  endeavor  to  supply  its  place  with  aptness  and  cer- 
tainty of  expression ;  and  often  indulges  in  too  much  veibiage. 
But  ahumhnis  cautcJa  non  vocef,  and  to  this  period  belongs  the 
ditierent  praise  of  that  wisdom  "  which  aims  to  make  things  as 
plain,  and  to  leave  as  little  to  construction  as  may  be."  a 

Where  the  law  was  only  part- written,  it  was  left  to  the  judges 
to  adjust  the  hiAv  to  special  cases  and  to  supply  every  deficiency 
by  construction. 

But,  where  the  law  is  specifically  prescribed  and  promulgated 
as  the  declared  will  of  the  supreme  power  in  the  state,  the  case  is 
wholh"  ditierent.  Supposing  the  written  law  to  require  change  or 
modification,  it  will  hardly  admit  a  C[uestion,  whether  such  alter- 
ation is  to  be  efiected  in  a  direct  maimer,  by  the  superior  power 
that  originally  created  the  law,  or  indirectl}',  by  the  subordinate 
authority  employed  to  give  it  efiect,  and  put  it  in  operation;  and 
if  a  doubt  could  exist  upon  the  subject  of  the  comparative  com- 
petency and  fitness  of  the  legislature,  and  of  the  judicature  of  the 
country,  to  correct  its  laAvs,  recourse  should  in  preference  be  had 
to  the  legislature.  For  the  legislature  usually  founds  its  regula- 
tions upon  general  principles;  Courts  of  law — and  of  equity  — 
frequently  refine  upon  individual  cases. 

Their  difierent  functions  have  been  thus  illustrated.  The  law- 
giver commands  that  housebreakers  shall  be  hanged ;  the  judge 
orders  that  for  a  specific  burglary,  a  particular  thief  shall  be 
hanged.  The  legislator  determines  a  class  and  description  of 
acts  ;  and  commands,  with  a  like  generahty,  that  punishment  shall 
follow.  The  judge  orders  a  specific  punishment,  the  consequence 
of  a  specific  oflence. 

1st.  Laws  are  made  directly  by  statute,  in  the  properly  legisla- 
tive way. 

2ndly.  Laws  are  made  judicially,  in  the  way  of  improper  legis- 
lation. 

Of  this  latter  class,  admitted  and  unexceptionable  instances  are 
— 1.  Laws  fashioned  by  judicial  decisions  upon  pre-existing  cus- 
toms ;  "Jus  morihus  const  it  uf  urn."  2.  Laws  founded  upon  author- 
ity of  learned  writers  and  ancient  sages  of  the  law ;  "Jus  pruden- 
tibus  compositam."  3.  Laws  drawn  from  the  natural  law,  founded 
on  the  law  of  God.  4.  Laws  of  foreign  original,  fashioned  on 
positive  international  law  ;  the  "Jus  Teceptum.'' 

The  positive  law  made  judicially,  is  equally  binding  with  the 
law  made  in  the  properly  legislative  manner.  Considered  as  moral 
rules   turned  into   2:)ositive  laws,  customary  laws  are  binding   as 

a  2  Inst.  37o. 


LEGISL-VnON  AND   JUEISPRUDENCE.  319 

establislied  by  the  state  :  establisliecl  by  the  state  directly,  -when 
the  customs  are  ])romu]ged  in  its  statutes;  estabhshed  by  the 
state  circuitousl^',  Avhcu  the  customs  are  adopted  by  its  tribunals,  a 

A  portion  of  the  sovereign  jjowcr  is  tacitly  delegated  to  the 
judge;  though  a  sul)jcct,  the  judge  is,  in  strictni;ss,  merely  a  minis- 
ter. ISinc  e  the  state  may  reverse  the  rules  Avliich  he  makes,  and  yet 
permits  him  to  enforce  them  by  the  power  of  the  political  com- 
nuinit}',  its  sovereign  Avill  "  that  his  rules  shall  obtain  as  law,"  is 
clearly  evinced  by  its  conduct,  though  not  by  its  express  declara- 
tion. This  is  the  explanation  given,  h  why  subject  judges,  who 
are  properly  ministei's  and  administrators  of  the  law,  have  com- 
monly shared  with  the  sovereigns  in  the  Ijusiness  of  making  it. 

But  in  a  great  variety  of  cases,  as  will  be  hereafter  shown,  the 
invasion  by  the  judges,  of  the  province  of  the  legislature,  has 
been  quite  unjustiliable.  Yet,  if  in  modem  times,  complaints  be 
justly  made  of  alterations  in  the  laws  eti'ected  by  equitable  inter- 
ference, or  by  judicial  usurpation,  it  is  ascribable  to  the  remisness 
of  the  legislature,  which  should  long  since  have  provided  for  a 
revision  of  our  statute  law. 

Tlie  truth  is,  that  the  legislature,  and  not  the  courts,  should  be 
driven  to  comply  with  the  necessities  of  mankind.  But  this,  un- 
fortunately, has  not  been  the  ]iractice.  AVhen  rules  of  law  have 
been  found  to  work  injustice,  they  have  been  evaded,  instead  of 
l)eing  repealed.  Obsolete  or  unsuitable  laws,  instead  of  being  re- 
moved from  the  statute  book,  have  been  made  to  bend  to  modera 
iisages  and  feelings.  Instead  of  the  legislature  framing  new  pro- 
visit)ns,  as  occasions  has  required,  it  has  been  left  to  able  judges 
to  invade  its  province,  and  to  aiTOgate  to  themselves  the  lofty 
jaivilege  of  correcting  abuses  and  introducing  improvements. 
The  rules  are  thus  left  in  the  breasts  of  the  judges,  instead  of 
being  put  upon  a  right  footing  by  legislative  enactment. 

Much  of  the  evil  just  described,  is  no  doubt  attributable  to  the 
supineness  of  the  legislature, — something  to  the  narrowness  of  the 
rules  of  the  common  law, — but  the  principal  share,  to  the  want  of 
a  proper  understanding  at  what  point  interpretation  ought  to  end, 
and  legislation  should  begin,  c  Let  the  discriminating  reader  look 
at  Burke's  elocpent  panegyric  upon  Lord  Mansfield,  and  then  ask 
himself  soberly — whether  every  improvement  the  orator  ascribes 
to  the  Judge,  however  unquestionable  meritorious,  is  not  within 
the  province,  and  ought  not  to  have  been  eftected  by  the  inter- 
vention of  the  legislature  ?  "  He  sought,"  it  is  said,  "  to  efl'ect  the 
amelioration  of  the  law,  by  making  its  liberality  keep  pace  with 
justice,  and  the  actual  concerns  of  the  world;  and  not  restricting 
the  infinitely  diversified  conditions  of  men,  and  the  rules  of  natural 
justice,  within  artificial  circumscriptions,  but  conforming  its  prm- 
ciples  to  the  growth  of  oiu'  connuerce  and  our  empire." 

a  Anstin  ou  Jurisprudence,  29.  h  Id.  ad  fin.        c  Butler's  Eeuiiuis.  vol.  1. 


o20  ENGLISH,   FFiENCH   .VKD   AMERICAN  JURISPRUDENCE. 

It  is  Dot  in  the  examination  and  solution  of  constitutional  ques- 
tions alone,  that  great  abilities,  and  a  thorough  mastery  of  the 
principles  of  government,  are  required  of  American  legislators  and 
American  jurists.  The  ordinary  course  of  legislation,  in  the  state 
and  national  councils,  is  full  of  intricate  and  perplexmg  duties, 
and  laborious  research,  if  intelligently  and  appropriately  per- 
foiTued.  It  is  not  every  man,  that  can  make  an  animated  address 
at  a  popular  meeting  or  run  through  the  common  places  of  party 
declamation  at  a  political  caucus  with  fluent  elocution  and 
steady  pressure,  who  is  quahfied  for  a  seat  in  the  national,  or  in 
the  state  legislatures,  or,  ujjon  the  judicial  bench,  a 

All  history  and  experience  have  taught  us,  that  the  great  mass 
of  human  calamities  in  our  own  period  of  experiment  in  govern- 
ment, as  in  all  ages,  has  been  the  result  of  bad  government ;  of  a 
capricious  exercise  of  power ;  a  flu/ctuating  public  policy;  or  a  de- 
grading tyranny  in  which  a  portion  of  its  subjects  have  been  held 
in  unequal  bondage,  through  the  means  of  a  desolating  ambition. 
The  besetting  delusion  in  a  popular  form  of  government,  especi- 
ally when  controlled  by  men  unlearned,  and  unskilled  in  the 
science  of  government,  is,  that  its  administration  is  a  matter  of 
gi-eat  simphcity ;  that  its  principles  are  clear,  and  that  they,  its 
agents,  are  hardly  liable  to  mistakes,  and  they  easy  satisfy  them- 
selves, that  it  is  a  satisfactory  method  of  winning  popular  favor 
by  appeals  which  flatter  popular  prejudices;  and  that  designs, 
which  they  are  thus  enabled  to  accomplish  by  being  sustamed  by 
such  e\'ideuce  of  approbation  of  their  agency,  is  regarded  as  sat- 
isfactory evidence  also  of  capacity. 

But  in  truth,  an  intelligent  and  unprejudiced  mind,  ripe  with 
human  experience,  may  safely  assert,  that  just  in  proportion  as  a 
government  is  free,  and  extended  over  a  vast  and  populous 
domain  of  diversified  habits,  manners,  institutions,  climates,  em- 
ployments, characters,  passions,  and  even  prejudices  and  propen- 
sities, so  in  proportion  the  administration  must  be  complicated. 
Simplicit}^  belongs  to  governments  only,  where  one  will  governs 
all ;  where  one  mind  directs,  and  all  others  obey ;  where  few 
arrangements  are  required,  because  no  checks  to  power  are  allowed; 
where  law  is  not  a  science,  but  a  mandate  to  be  followed,  and  not 

a  Story  on  the  Science  of  Government. 


ENGLISH,   FRENCH   AND  AMERICAN   JURISPRUDENCE.  321 

to  be  discussed ;  wliere  it  is  not  a  rule  for  permanent  action,  but 
a  capricious  and  arbitrary  dictate  of  the  hour,  a 

To  fit  a  man  for  a  lcgishit(jr  to  enact  laws  in  a  soimd  system  of 
free  government,  Ave  may  adopt  the  opinion  of  Lord  Brougham. 
"It  requires  that  he  should  read  and  inform  himself  uponpoUtical 
subjects ;  else  they  are  the  prey  of  every  (juack,  of  every  imposter, 
every  agitator,  -who  ma}'  practice  his  trade  m  the  country.  If  he 
do  not  read,  if  he  does  not  learn,  if  he  does  not  digest  by  discus- 
sion and  reflection  what  he  has  read  and  learned ;  if  he  does  not 
qualify  himself  to  form  opinions  for  himself,  other  men  will  form 
opinions  for  him ;  not  according  to  the  truth,  and  the  interests  of 
the  people,  but  according  to  their  own  individual  and  selfish  in- 
terest, which  may,  and  most  probably  Avill  be  contrary  to  that  of 
the  people  at  large.  The  best  security  for  a  government  like  ours, 
(a  free  government,)  and  generally  for  the  public  peace,  and  pub- 
lic morals,  is,  that  the  whole  conuuunity  should  be  well  informed 
upon  its  poHtical  as  Avell  as  its  otl^er  interests." 

The  principles  of  the  constitution  under  which  we  live,  and 
under  which  our  legislators  are  called  to  act  in  the  enactment  of 
laws  ;  the  principles  ujion  which  the  republics  are  founded ;  by 
which  they  are  sustained,  and  by  which  they  must  be  saved ;  the 
principles  of  pubhc  policy  by  which  the  national  prosperity  is 
secured,  and  national  ruin  averted ;  are  not  party  credit,  or  party 
dogma's ;  but  are  principles  inherent  in,  or  fundamental  to  every 
citizen  of  the  government.  There  are  no  secular  blessings  in 
human  hfe  of  more  mestimable  value,  than  those  derived  from 
good  government,  where  honest  labor  has  its  just  reward,  property 
its  perfect  security ;  domestic  life  undisturbed  tranquility ;  and 
every  citizen,  without  regard  to  rank,  color  or  condition,  an  equal 
right  to  the  enjo3'ment  of  liberty.  These  are  rights  secured  by 
the  constitution  and  made  perfect  by  legislation. 

As  to  the  assumptions  of  juiisdiction  by  the  court  of  chancery, 
it  will  be  more  satisfactory  to  rest  \\\\o\\  the  admissions  of  its  orna- 
ment, as  well  as  apologist,  Lord  Hardwicke  ;  than  to  refer  to  the 
.  opinion  of  Mr.  Humjihreys,  its  less  ardent  admirer,  that  "  its  acts 
have  been  rather  legislative  than  judicial."  h 

Whatever  may  be  regarded  as  the  distinct  and  certain  origin  of 

a  Id.  6  Humphrey's  Observations  on  the  Laws  of  Eeal  Proiierty,  tto. 

41 


322  ENGLISH,   TEENCH  AKD   AMEEICAN  JURISPRUDENCE. 

tlie  Coiu't  of  Cliancerj  in  Englandj  it  was  seldom  resorted  to,  ■until 
the  passage  of  two  noted  statutes,  tlie  statutes  of  wills,  and  uses, 
in  the  reign  of  Henry  YIII,  and  after  these,  the  statute  of  chari- 
table uses,  in  the  reign  of  Queen  Elizabeth.  These,  together,  says 
Mr.  Justice  Story,  a  "laid  the  foundation  of  that  broad  and  com- 
prehensive judicatui'e,  in  "which  equity  administers  through  its 
searching  interrogations  addressed  to  the  consciences  of  men,  the 
most  beneficent  and  wholesome  j^rinciples  of  justice.  The  whole 
modern  stnicture  of  trusts,  infinitely  diversified  as  it  is  by  marriage 
settlements,  terms  to  raise  portions  to  pay  debts,  contingent  and 
springing  appointments,  resulting  uses,  and  imphed  trusts,  grew 
out  of  this  last  named  statute,  and  the  constructions  put  upon  it." 

Under  the  guidance  of  Lord  Bacon,  the  business  of  chancery 
assumed  a  regular  course  ;  and  at  the  distance  of  two  centuries, 
his  celebrated  ordinances  continue  to  be  the  pole  star  which 
directed,  and  still  directs  the  course  of  courts  of  equity.  At  a 
later  day,  the  doctrines  of  the  courts  of  equity  attained  a  still 
higher  degree  of  perfection.  Lord  Nottmgham  brought  to  that 
hranch  of  jurisprudence,  a  strong  and  cultivated  mind,  and  pro- 
nounced his  decrees  after  the  most  cautious  and  painstaking 
study.  Lord  Cowper,  and  Lord  Talbot,  pursued  the  same  course 
with  the  genuine  spirit  of  jurists.  But,  in  England,  it  was  reserved 
for  Lord  Hardwicke,  by  his  deep  learning  and  extensive  researches 
and  his  powerful  genius,  to  combine  the  scattered  fragments  into 
a  scientific  system ;  to  define  with  a  broader  line  the  boundaries 
between  the  departments  of  the  common  law  and  chancery ;  and 
to  give  certainty  and  vigor  to  the  j)rincij)les,  as  well  as  the  juris- 
diction, of  the  latter.  Henceforth,  equity  began  to  acquire  the 
same  exactness  as  the  common  law.  At  a  still  later  period,  we 
have  seen  in  the  labors  of  Lord  Eldon  through  a  series  of  more 
than  twenty-five  volumes  of  reports,  a  dihgence,  sagacity,  caution 
and  force  of  judgment,  which  have  seldom  been  equalled  ;  and 
which  gave  dignity  as  well  as  finish  to  that  great  moral  macliinery 
which  administered  the  rules  and  doctrines  of  conscience  ex  aequo 
et  bono." 

But  we  may  take  pride  in  saying,  that  no  higher  degi-ee  of  per- 
fection in  tlie  system  of  equitable  jurisprudence  was  ever  attained 

a  Story's  Progress  of  Jurisprudence. 


ENGLISH,   FPiENCII   AND   AJIEIJICAN   JURISrRUDENCE.  323 

in  Englaiitl,  nor  its  adniinistnition  conducted  with  a  higher  degree 
of  credit  for  learning  and  research,  than  is  to  be  found  in  the  re- 
[)orted  adjudications  of  Kent  and  "Walworth,  -whoso  repoiied 
opinions  and  decrees  are  found  moulded  into  a  degree  of  moral 
beauty  and  perfection  -which  their  English  predecessors  have  not 
surpassed,  or  been  exceeded  by  the  learned  treatises  upon  equit- 
able jurisprudence  of  Justice  Story. 

"  Ne-\v  discoveries  and  inventions  in  commerce,"  says  Lord 
llardwicke,  in  a  letter  to  Lord  Karnes  before  referred  to,  "have 
given  birth  to  new  species  of  contracts;  and  these  have  been 
followed  by  new  contrivances  to  break  and  elude  them,  for  which 
the  ancient  simplicity  of  the  common  law  had  adapted  no  remedies  ; 
and  from  this  cause,  courts  of  equity,  which  admit  of  a  greater 
latitude,  have,  imder  the  head  acljiu-andi,  vel  si(pp(cndi  juris  ciuilis, 
been  obhged  to  accommodate  the  wants  of  mankind." 

"  Another  source  of  the  increase  of  business  in  the  courts  of 
equity  has  been,  the  nniltiplication  and  extension  of  trusts.  New 
methods  of  settling  and  incuudjering  landed  in-oi:)erty  have  been 
suggested  by  the  necessities,  extravagance,  or  real  occasions  of 
mankind.  But  what  is  more  than  this,  new  species  of  property 
have  been  introduced,  joarticularly  by  the  establishment  of  the 
public  fimds,  and  various  transferable  stocks,  that  requu-ed  to  be 
modified  and  settled  to  answer  the  exigencies  of  families,  to  which 
the  rrdes  and  methods  of  conveyancing  would  not  ply  or  bend. 
Here  the  liberahty  of  courts  of  equity  has  been  forced  to  step  m 
and  lend  her  aid." 

In  comparing  the  present  state  of  jurisprudence  in  this  country', 
with  that  of  a  former  day  in  England,  Ave  have  much  reason  for 
congratulation.  In  arbitrary',  and  desj)otic  governments,  the  laws 
rarely  undergo  any  considerable  changes  through  a  long  series  of 
years.  In  free  governments,  and  in  those  where  the  popular  in- 
terests have  obtained  some  representation  or  power,  however 
limited,  the  case  has  been  far  otherwise.  "We  can  here  trace  a 
regular  progi'ess  in  the  laws  from  }ear  to  year,  and  a  gradual 
adaptation  of  them  to  the  wants,  employments,  and  improved  con- 
dition of  man  under  a  fi-ee  government,  corresponding  to  their  ad- 
vancement with  arts,  in  the  sciences,  in  inteUigencc,  and  in  the 
refinements  and  elegancies  of  life.  As  the  citizen  is  made  to  feel 
his  independence,  dignity,  and  responsibility  as  a  portion  of  the 
sovereign  power ;  as  civilization  advances,  and  he  becomes  edu- 
cated in  the  knowledge  of  his  rights,  and  is  called  in  to  assist  in  the 


324  ENGLISH,  FEENCH  AND   AMERICAN  JURISPRUDENCE. 

formatiou  of  the  governiueut  of  liis  choice ;  we  find  him  engaging 
himself  in  acloptmg  a  system  of  fundamental  law,  in  which,  the 
judicial  powers  are  separated  from  the  executive  and  legislative 
authorities ;  and  men  are  selected  for  judicial  positions,  whose  sole 
duty  it  is,  to  administer  justice,  and  correct  abuses.  "  The  pun- 
ishment of  crimes,  at  first  arbitrary,  is  found  gradually  moulded 
into  a  system,  and  moderated  in  its  severity  ;  and  property,  which 
in  other  countries  is  inherited  under  a  law  of  primogeniture,  with 
a  permanancy  of  tenure,  becomes  here,  transmissable  in  equal 
portions  to  the  descendants  of  those  whose  enterprise,  or  good 
fortune,  has  accumulated  it."  a 

We  know  from  the  history  of  the  times,  that  before  the  revolu- 
tion,  while  our  system  of  jurisprudence  was  substantially  that  of 
the  mother  country,  our  progress  in  the  law  was  slow,  though  not 
slower,  perhaps,  than  in  other  departments  of  science;  the  re- 
sources of  the  country  were  small,  the  population  sparce  and 
scattered,  the  business  of  the  courts  limited,  the  compensation  for 
professional  services  moderate,  and  the  judges  not  always  selected 
from  those  learned  in  the  law.  Our  colonial  condition  restrained 
our  foreign  commerce ;  the  principal  trade  was  to,  or  through  the 
mother  country,  and  our  most  important  contracts  began  or  ended 
there.  While  there  were  learned  men  in  the  profession,  their 
number  was  small ;  and  from  the  nature  of  the  business  which 
occupied  the  courts,  the  knowledge  required  for  common  use,  was 
neither  very  ample,  nor  very  difiicult. 

Since  the  war  of  independence,  the  progress  of  jurispnldence  in 
this  country  has  been  most  rapid,  keeping  equal  pace  with  the 
progress  of  population,  and  to  the  advance  in  all  the  arts  and 
knowledge  that  now  characterize  its  peo2:)le.  With  a  union  of 
thirty-six  independent  states,  now,  and  two  or  more  territories, 
now  waiting  for  admission  as  states,  in  nearl}^  all  of  which,  the 
same  compion  law,  substantially  is  the  acknowledged  basis  of  their 
jurisprudence,  and  upon  wliich,  their  statutes,  part  of  their  juris- 
pnldence, are  enacted ;  we  find,  notwithstanding  the  differences  of 
habits,  of  chmate,  nationalities,  peculiarities,  local  customs  and 
judicial  determinations,  a  far  greater  degree  of  uniformity  in  the 
law  and  its  administration,  than  could  have  been  expected.     The 

a  Story  on  Jurisprudeuce. 


ENGLISH,  FRENCH  AND  AMERICAN  JURISPRUDENCE.  325 

task  liowever,  of  administering  justice  for  tlio  cunscs  above  men- 
tioned, in  the  state  and  national  courts,  owing  to  the  somewhat 
complex  system  of  national  and  state  jurisdictions,  is  both  laborious 
and  perplexing,  owing  to  the  almost  unavoidable  consequence  of 
their  peculiar  relations  to  each  othe)-, — and  of  course,  one  of  the 
most  common  cmbarrasments,  arises  from  the  conflict  of  rival 
jurisdictions. 

The  most  delicate,  and  at  the  same  time,  the  proudest  attribute 
of  American  jurisprudence,  is  the  right  of  its  judicial  triliunals  to 
decide  questions  of  constitutional  law.  In  England,  the  legislative 
authority  is  practically  omnipotent;  the  judicial  power  cannot 
reach  them.  Here,  says  Judge  Story,  "  the  privilege  of  bringing 
every  law^  to  the  test  of  the  constitution,  belongs  to  the  humblest 
citizen,  who  owes  no  obedience  to  any  legislative  act  which  tran- 
scends the  constitutional  limits."  However  nnicli,  at  an  curliir 
day,  the  sympathies  of  those  learned  in  the  English  system,  may 
have  led  them  to  question  this  doctrine,  their  views  have  been 
yielded,  and  at  this  day,  the  question  is  no  longer  mooted  in  the 
courts.  The  wise  and  the  learned,  and  the  virtuous,  are  unanim- 
ous in  sustaining  the  doctrine  which  the  courts  of  justice  have 
unifomily  asserted ;  that  the  constitution,  is  not  only  the  law  for 
the  legislature,  but  is  the  law,  and  the  supreme  law%  which  is  to 
direct  and  control  all  judicial  proceedings. 

"  The  discussion  of  constitutional  questions,"  says  judge  Story, 
"  throws  a  lustre  round  the  bar,  and  gives  dignity  to  its  functions, 
wliich  can  rarely  belong  to  the  profession  in  any  other  country. 
Lawyers  are  here  emphatically  placed  as  sentinels  upon  the  out- 
posts of  the  constitution ;  and  no  nobler  end  can  be  proposed  for 
their  ambition  or  i^atriotism,  than  to  stand  as  faithful  guardians 
of  the  constitution,  ready  to  defend  its  legitimate  powers,  and  to 
stay  the  arm  of  legislative,  executive  or  popular  oppression.  If 
their  eloquence  can  charm,  when  it  vindicates  the  innocent  and 
the  suffering  under  private  WTongs ;  if  their  learning  and  genius 
can,  with  almost  superhuman  witchery,  unfold  the  mazes  and  ui- 
tricacies  by  w^hich  the  minute  links  of  title  are  chained  to  the 
adamantine  pillars  of  the  law  ; — how  much  more  glory  belongs  to 
them,  when  this  eloquence,  this  learning,  and  this  genius,  are  em- 
ployed in  defence  of  their  country ;  when  they  breathe  foiili  the 


32G  ENGLISH,   FRENCPI   AND   AMEMCAN  JURISPRUDENCE. 

purest  spirit  of  morality  and  viriue  in  support  of  the  rights  of 
mankind ;  -vvlieu  they  expoimd  the  lofty  doctrmes  which  sustain, 
and  connect,  and  guide  the  destinies  of  nations;  "when  they  com- 
bat popular  delusions  at  the  expense  of  fame,  and  friendship,  and 
political  honors ;  when  they  triumph  by  arresting  the  progress  of 
en'or  and  the  march  of  power,  and  drive  back  the  torrent  that 
threatens  destruction  equally  to  pubhc  Hberty  and  to  private  prop- 
erty ;  to  all  that  dehghts  us  in  private  life,  and  all  that  gives  grace 
and  authority  in  pubhc  office." 

"  This  is  a  subject,  wdiich  cannot  too  deeply  engage  the  most 
solemn  reflections  of  the  profession.  Our  danger  lies  in  the 
facility,  with  wliich,  under  the  popular  cast  of  our  institutions, 
lioncst  but  visionary  legislators  and  artful  leaders  may  approach 
to  sap  the  foundations  of  our  government.  Other  nations  have 
the  security  against  sudden  changes,  good  or  bad,  in  the  habits 
of  the  people,  or  in  the  nature  of  their  institutions.  They  have 
a  monarchy  gifted  with  high  prerogatives ;  or  a  nobility  graced 
with  wealth  and  knowledge  and  hereditary  honors  ;  or  a  stubborn 
national  spirit,  proud  of  ancient  institutions,  and  obstinate  against 
aH  reforms.  These  are  obstacles,  which  resist  the  progress  even 
of  salutary  changes ;  and  ages  sometimes  elapse  before  such  reforms 
are  introduced,  and  yet  more  ages  before  they  are  sanctioned  by 
public  reverence.  The  youthful  vigor  of  our  constitutions  of  gov- 
ernment, and  the  strong  encouragements,  held  out  to  free  cUscus- 
sion,  to  new  inquiries  and  experiments,  expose  us  to  the  opposite 
inconvenience  of  too  little  regard  for  Avhat  is  estabhshed,  and  -too 
warm  a  zeal  for  untried  theories.  This  is  our  weak  point  of  de- 
fence; and  it  will  always  be  assailed  by  those  who  pant  forj)ubhc 
favor,  and  hope  for  advancement  in  political  struggles." 

Under  the  pressure  of  temporary  evils,  or  the  misguided  im- 
pulses of  party,  or  plausible  alarm  for  public  liberty,  it  is  not  dif- 
ficult to  persuade  ours-elves,  tliat  what  is  established  is  wrong  ; 
that  what  bounds  the  popular  wishes  is  oppressive ;  and  that  what 
is  untried,  wdU  give  permanent  relief  and  safety.  Frame  consti- 
tutions of  government  with  what  wisdom  and  foresight  we  may, 
they  must  be  imperfect,  and  leave  something  to  discretion,  and 
much  to  public  virtue.  It  is  m  vain  that  we  insert  bills  of  rights 
in  our  constitutions,  as  checks  upon  legislative  power,  unless  there 


ENGLISH,  FRENCH  AND   AMERICAN  JUELSrEUDENCE.  327 

be  firmness  in  courts,  in  the  hour  of  tiial,  to  resist  the  fashionable 
opinions  of  the  day.  The  judiciary  in  itself,  has  little  power,  ex- 
cept that  of  protection  for  others.  It  operates  mainly  by  an 
appeal  to  the  understandhigs  of  the  wise  and  the  good  ;  and  its 
chief  support,  is  the  integrity  and  independence  of  an  enhghtened 
bar. 

AVhile  our  judges  remain  fearless  and  hrm  iu  the  discharge  of 
their  functions,  corrupt  and  popular  leaders  at  the  bar  cannot 
possess  a  wide  range  of  oppression,  but  must  stand  rebuked  in 
their  career  for  power.  But  it  requires  no  uncommon  .spirit  of 
prophecy  to  foresee,  that  whenever  the  hberties  of  this  country  are 
to  be  destroyed,  it  will  be  when  public  opinion  shall  be  l(5st  in  the 
integiity  of  the  ju(hciary ;  Avhen  the  conspiracy  shall  be  bold 
enough  to  cori-upt,  and  judges  be  found  so  Avauting  in  character  as 
to  consent  to  be  corrupted ;  then  shall  we  see  the  courts  of  justice 
brought  into  public  odium ;  and  thus  shall  be  seen  removed,  the 
last  baniers  between  the  people  and  despotism. 

Thus  it  appears,  that  these  objects,  rendered  necessary  by  a 
change  of  circumstances,  have  been  effected  by  equitable  inter- 
ference,—that  is,  in  truth,  l)y  judicial  refinement,  and  not  by  the 
seasonable  enactment  of  salutary  laws.  Instead  of  the  encroach- 
ment upon  the  common  law,  of  which  Bacon  was  apprehensive, 
it  seems  that  the  Pnctorian  courts  -'  overflowed  their  banks  in  an 
opposite  direction,  and,  while  sparing  of  injimctions,  openly  in- 
vaded the  province  of  the  Legislature.  Upon  a  careful  investiga- 
tion of  the  coui'se  actually  pursued,  it  will  be  found  that,  in  gen- 
eral, inconvenient  laws  were  set  aside,  and  required  changes  were 
effected,  by  the  use  of  technical  fictions,  and  contrivances  to  evade 
inconsistent  rules ;  and  if  there  have  been  a  lamentable  want  of 
poUtic  institution,  there  has  been  thought  to  have  been  also,  at 
times,  some  defect  of  jutlicial  princi})le.  Mr.  Butler  is  decidedly 
of  opinion,  as  regards  the  ascertaining  and  obtaining  the  proper 
boundary  of  intei-pretation  and  legislation,  that  the  French  courts 
of  justice  have  shown  gi'eater  moderation  than  oui'  own,  in  the 
exercise  of  this  important  branch  of  judicature,  a  It  certainly  is 
a  remarkable  fact,  that  the  jurisdiction  or  methods  of  proceeding 
in  all  our  superior  courts,  will  bo  discovered,  on  inquiry,  to  be 
founded  iu  usurpation,  and  sustained  by  fiction. 

a  Kemiuis.  vol.  1. 

*  "  Maxime  omnium  interest  certitudinis  legnm,  iie  curi;T>  pr.ttoriae  iutumcscant 
et  exundent  iu  tantum,  ut  proetextu  rigoris  legum  mitigandi,  etiam  roher  et  uervos 
lis  incidantaut  laxent,  omnia  trahendo  ad  arbitrium." — Ay-hr.r',-:rii.  43. 


328  ENGLISH,   FEENCH   AND   AMEEICAN  JriHSPEUDENCE. 

The  jurisdiction  of  the  court  of  King's  Bench  m  civil  actions, 
was  notoriously  acquired  by  contrivance,  the  court  of  common 
pleas  having  had,  in  former  times,  the  exclusive  cognizance  of  all 
.--uits  merely  civil,  that  is  to  say,  which  had  nothing  in  the  pro- 
ceedings of  a  criminal  nature,  inasmuch  as  neither  trespass  nor 
violence  were  imputed  to  the  defendant.  But  by  a  fiction  of  law, 
fill  persons  alleged  to  be  ])risoners,  in  the  custody  of  the  Marshal 
of  the  Marshalsea,  though  not  actually  being  so,  were  held,  as 
such,  Hable  to  be  sued  in  any  personal  action,  by  bill  filed  in  the 
court  of  king's  bench. 

The  court  of  common  pleas  always  had  a  direct  jurisdiction  in 
civil  suits ;  but  "  rcgularh',"  says  Lord  Coke,  "  the  court  cannot 
hold  any  common  pleas  in  any  action,  real,  personal,  or  mixed, 
but  by  Avrit  out  of  the  chancery,  and  returnable  in  this  court,  a 
(except  b}'  the  privilege  of  its  officers.)"  Yet  without  setting  out 
an}'  original  writ,  the  common  capias  proceeded  upon  the  founda- 
tion of  such  supposed  previous  proceedmg. 

The  peculiar  juj-isdiction  of  the  court  of  exchequer  at  common 
law,  related  to  matter  concerning  the  king's  revenue  ;  "  the  effec- 
tual description  of  the  jurisdiction  of  the  court  being,"  says  Lord 
Coke,  h  "  that  it  is  for  the  profit  of  the  king."  Hence,  it  was  early 
established,  that  any  person  being  a  debtor  or  accountant  of  the 
cro-UTi,  might  sue  in  the  exchequer  either  at  equity  or  at  law,  to 
obtain  a  light,  the  mthholding  of  which  rendered  him  less  able  to 
satisfy  liis  debt  to  the  crown. 

It  has  been  already  seen,  of  what  handles  the  court  of  chancery 
availed  itself,  and  by  wdiat  means  it  was  enabled  to  assume  a  juris- 
diction over  real  property,  greatly  more  extensive  than  was  ever 
possessed  by  the  common  law  courts. 

Upon  the  subject  of  legal  fictions,  (the  mstrument  by  which  all 
these  usurpations  were  affected,)  the  follov/ing  judicious  remarks 
were  made  by  the  intelligent  persons  appointed  to  inquire  into  the 
practice  and  proceedings  of  the  superior  courts  of  common  law. 
The  obseiTations  of  the  learned  commissioners  are  so  well  founded, 
acute,  and  sensible,  and  so  apt  to  the  present  purpose  of  this  work, 
that  no  hesitation  can  be  felt  in  citing  and  adopting  them  verbatim, 
as  they  occur  in  their  first  report,  c  "  Our  ancient  institutions 
having  been  adapted  to  a  rude  and  simple  state  of  society,  the 
courts,  in  later  times,  gradually  became  sensible  of  defects  of  juris- 
diction and  other  inconveniences,  to  which  the  altered  cu'cum- 
stances  of  the  nation  had  naturally  given  rise.  In  some  cases  the 
remedy  was  supplied  by  legislative  regulations ;  but  where  this 
was  wanting,  the  judges  were  apt  to  resort  to  fiction,  as  an  expe- 
dient for  effecting  indirectly,  that  which  they  had  no  authority  to 
estabUsh  by  law.     But  to  whatever  causes  the  invention  or  en- 

o  4  Inst.  99.  c  First  Common  Law  Report,  p.  82. 

h  4  Inst.  112. 


ENGLISH,   FKENCH   AND   AMERICAN  JURISPRUDENCE.  329 

couragement  of  legal  fictions  may  be  assignaljle,  avc  have  no  doubt 
that  they  have  an  injurious  effect  in  the  atlniinistration  of  justice, 
because  they  tend  to  bring  tlie  law  itself  into  suspicion  with  the 
public,  as  an  unsound  and  delusive  system  ;  wliile  an  impression 
of  the  ridiculous  is  idso  occasionally  excited  by  them,  of  which  tlie 
natural  effect  must  be  to  degi'ade  the  science  ui  some  measure,  in 
p()])ular  estimation." 

The  same  observations  apply  to  other  cases: — to  what  has  been 
termed  the  "clumsy"  fiction  of  a  lost  grant  in  the  case  of  an  ease- 
m6nt; — to  judges  presuming  an  act  of  pa}iiament ; — to  directions 
to  juries  to  presume  the  surrender  of  a  term  or  something  else  ab- 
solutely contrary  to  the  fact,  in  lien  of  altering  an  inconvenient 
law  by  dii'eet  legislative  enactment ;  a  in  short  to  all  instances  of 
ingenuity  employed  in  contrivances  to  evade  a  law  that  requires 
to  be  altered. 

It  only  remains  to  be  stated,  tliat  there  has  not  been  any 
marked  reciprocity  of  usurpation.  The  case  of  bills  and  attainder 
and  bills  of  pains  and  penalties  is  the  only  familiar  mstance  of  the 
legislature  quitting  its  proper  province,  and  superseding  the  judi- 
cial functions. 

a  First  Eeport  of  Eeal  Property  Commissioners. 


42 


330  SOVEREIGN  rOWER. 


CHAPTER  X. 

OF  AaiEKICAN  CONSTITUTIONAL  POWER.  ITS  LIMITATIONS;  ITS  DIS- 
TRIBUTION OF  THE  SOVEREIGN  TOWER  TO  THREE  DEPART- 
]MENTS;  THE  INDEPENDENCE  OF  EACH  DEPARTMENT  OF  THE 
OTHER.  THE  FUNCTIONS  OF  EACH  DEPARTMENT  IN  THE  AD- 
JHNISTRATION  OF  THE  LAW. 

In  the  preceding  cliapter,  was  eousidered,  the  natui-e  and  ex- 
tent of  legislative  power  independent  of  any  restriction,  contained 
in  the  written  constitutions  of  the  nation  or  state.  In  this,  we 
propose  to  show  some  of  the  limitations  of  legislative  power ;  and 
this  seems  to  demand,  that  we  show  what  constitutes  the  law- 
making power  in  a  free,  repubhcan  fomi  of  government ;  and  how 
this  power  is  organized  under  our  system  of  written  constitutions, 
with  its  limitations  and  restrictions,  into  several  departments  ;  and 
the  separate  j^owers  and  duties  of  each  department. 

This  law  making  power,  as  our  author  has  remarked,  in  a]l 
civiHzed  governments,  is  usually,  vested  in  the  sovereign  power  of 
the  state.  By  sovereign  power,  is  usually  meant,  unhmited  and 
uncontrolled  power.  This,  seems  to  have  been  the  opinion  of 
almost  all  the  ancient  wTiters,  that  in  whatever  department  of  the 
government  this  power  was  lodged,  it  was  regarded  as  absolute, 
and  beyond  control ;  that  it  must,  absolutely,  be  possessed  by 
some  one  department  of  government ;  and  that  the  person  or  power 
in  whom  this  sovereignty  resides,  is  the  supreme  power  in  the 
making  and  promulgation  of  laws ;  and  this,  is  usually  called  the 
legislative  power,  a 

These  opinions,  however,  are  chiefly  confined  to,  and  are  the 
reasonings  of  the  ethical  and  juridicial  writers  of  Eurojic,  among 
whom  no  uniformity  of  opinion  really  exists.  Burlimaqui  says', 
"  that  this  sovereign  power  is  supreme  and  independent,  and  when 
once  established,  it  acknowledges  no  other  uj)on  earth  superior  or 
equal  to  it."  h     "  That  among  the  essential  parts  of  sovereignty,  the 

a  Paley's  Mor.  Philos.,  2  part  185.  b  Prin.  of  PoL  Law,  Pt.  1,  Ch.  6. 


SOVEREIGN  POWER.  331 

lirst  rank  is  given  to  the  legislative  power."  a  He  however  admits 
that  God  alone,  by  reason  of  His  nature  and  perfections,  has  a 
natural,  essential,  and  inherent  right  of  giving  laws  to  mankind 
and  of  exercising  an  absolute  sovereignity  over  them,  h  That 
human  sovereigns  are  God's  vicegerents  on  earth,  which  means, 
that,  by  the  power  lodged  in  their  hands,  and  witli  which  the 
people  have  mvested  them,  they  maintain,  agi'ceably  to  the  views 
of  the  Deity,  both  order  and  peace,  and  thus  procure  the  feUcity 
of  mankind ;  and  he  quotes  a  passage  from  Cicero,  to  this  pur- 
pose, viz :  "  Nothing  is  more  agreeable  to  the  Supreme  Deity,  that 
governs  this  universe,  than  civil  societies  lawfully  estabhshed." 

We  do  not  propose  in  this  work  to  fully  discuss  the  diversities 
of  theoiy  upon  the  question  of  sovereignty,  except  in  American 
governments ;  to  show  where  this  power  resides ;  to  trace  it  to  its 
origin  ;  to  exhibit  its  power  in  the  European  governments  as  it  is 
claimed  by  the  various  writers  on  this  subject;  or  to  compare  tlieir 
various  theories  for  the  purpose  of  drawing  any  conclusion  tliere- 
h'om.  As  it  is  understood  to  tlie  ordinary  mind,  sovereignty  is 
that  public  authority,  which  has  no  superior ;  it  is  the  power  to  do 
any  thing  and  every  thing  m  a  State,  without  being  accountable  to 
'  any  one  ;  to  make  laws  and  to  execute  them ;  it  is  that  power  which 
commands  in  organized  civil  society,  and  which  orders  and  directs 
what  each  must  do,  to  acquire  its  ends.  With  us,  it  is  a  union  of 
all  the  powers  of  the  state.  Abstractedly  considered,  it  belongs 
to  the  people,  and  resides,  essentially  in  the  body  of  the  nation, 
but  with  us,  the  nation,  by  the  people,  now  exercise  this  power  by 
delegation.  To  the  curious  who  may  deshe  to  investigate ;  to  the 
student  of  history  who  may  desire  to  make  research  ;  to  the  poh- 
tician  who  may  desire  to  learn  and  to  compare  the  powers  of  dif- 
ferent governments,  and  to  the  philosopher  who  seeks  the  pro- 
foundest  soiu'ces  of  knowledge  upon  the  science  of  governments, 
with  all  its  incidents,  we  commend  the  theories  of  such  juridicial 
writers  as  Grotius,  Puffendorf,  Burlimaqui,  Coke,  Blackstone,  Do- 
mat,  Locke,  Burke,  Christian,  Wooddeson,  and  others  of  gi'eater 
or  less  note. 

It  will  bo  our  object,  to  present  in  this  treatise,  the  American 
idea  of  the  powers  of  legislation ;  and  to  show  how  far  the  exercise 

aid.  Pt.  3,  Ch.  1.  5  Id. 


332  SOVEREIGN  rOWEE. 

of  sovereign  autlioiity  is  vested  iu  our  legislative  bodies,  only  so 
far  as  is  practically  necessary  to  present  the  controlling  force  and 
authority  of  our  own  statutes. 

Sovereignty,  it  is  true,  in  our  own,  as  well  as  in  all  other  civUized 
governments  imports  the  supreme,  absolute,  uncontrollable  power 
by  which  any  state  is  governed,  a  but  sovereignty,  in  our  republican 
fonn  of  government,  is  not  vested  alone  in  the  law-making  power. 

It  is  not  true  therefore,  in  our  form  of  government,  as  is  laid 
down  in  the  philosophy  of  ,Paley,  that  the  sovereign  power  is 
necessarily  lodged  in  one  separate  and  distinct  department  of  gov- 
ernment where  it  remains  absolute  and  uncontrolled ;  6  nor  accord- 
ing to  the  theory  of  Burhmaqui,  that  when  its  seat  is  ascertained, 
it  possesses  the  power  to  judge  in  the  last  resort  of  whatever  is 
susceptible  of  human  direction  which  relates  to  the  welfare  and 
advantage  of  society ;  and  that  in  this  respect  it  acknowledges  no 
superior  or  equal.  These,  and  many  others  of  the  ancient  writers 
upon  this  subject,  based  their  opinions  upon  the  assumption,  that 
princes  ruled  by  a  riglit  Divine,  confen-ed  by  the  immediate  act  of 
the  Deity.  But  even  this  tlieoiy,  has  been  exploded  by  the  gov- 
ernment of  Great  Britain,  and  most  of  the  EngUsh  writers  now 
claim  that  the  parliament  of  England,  possesses  the  attribute  cf 
poHtical,  legal  and  moral  omnipotence,  c 

By  the  theory  of  our  government,  the  primary,  as  w'ell  as  the 
ultimate  sovereignty  in  human  affairs,  is  in  the  people,  from 
■whom,  aU  legitimate  civil  authority  springs.  Tliis  is  applicable 
not  only  to  the  Kational,  but  to  the  State  governments.  In  the 
international  sense,  the  word  State,  is  applicable  only  to  the  federal 
government,  but  as  between  the  sovereign  members  of  the  Amer- 
ican union,  the  word  Nation  is  used  as  applying  to  the  federal,  and 
State,  ^  as  applicable  to  the  several  component  members. 

a  story  on  Const.,  §  207.  b  Paley's  Mor.  Pbilos.,  Pt.  2,  p.  185. 

c  1  Black  com.  IGO,  4.08;  8  Co.  118,  Bac.  Abr.,  stat.  A. 

Note  1. — In  a  republic,  the  sovereignty  resides  in  the  great  body  of  the  people, 
not  as  so  many  distinct  individuals,  but  in  their  politic  capacity.  Penballow  v. 
Doane,  3  Dallas  93.  The  sovereignty  of  the  United  States,  and  of  the  several 
states,  are  distinct  and  independent  of  each  other  •within  their  respective  spheres 
©faction;  though  both  exist  within  the  same  territorial  limits.  Ableman  v. 
Booth,  21,  How.  50G.  They  retain  in  severalty,  a  distinct  but  qualified  sover- 
eignty.   Hubbard  v.  N.  Eailroad  Co.,  3  Blatch,  C.  C.  84. 


SOVEREIGN  POWER.  333 

"Wlien  the  people  of  the  Uuitecl  States  instituted  civil  govern- 
ment, they  constituted  it  one  federal  nation.  They  declared  in 
their  in-camblo  to  the  constitution,  as  follows  :  "  "We,  the  people 
of  the  United  States,  in  order  to  form  a  more  perfect  union,  estab- 
lish justice,  insure  domestic  tranquility,  provide  for  the  common 
defence,  promote  the  common  Avclfarc,  and  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity,  iJo  ordain  and  eslahUsJi  this 
Constitution  of  the  United  States  of  America." 

The  national  government  thus  created  by  the  voice  of  the 
people,  became  a  national  body  politic  and  corporate,  invested 
with  supreme  authority  for  national  pui-poses,  with  power  to  ex- 
ercise all  such  authority  as  was  expressly  or  impliedly  committed 
to  its  jurisdiction  by  the  constitution. 

It  is  the  logical  and  necessary  result,  that  the  powers  of  a  gov- 
ernment estabhshed  upon  republican  principles,  and  upon  an  ex- 
press compact,  like  this,  (if  it  may  be  called  such,)  that  the  extent 
and  nature  of  its  powders  must  be  determined  by  the  terms  of  the 
instrument  itself.  Within  the  confeiTcd  lunits,  the  government 
must  still  be  sovereign,  and  must  exercise  its  sovereign  power  for 
national  purposes,  and  must  distribute  to  its  various  departments, 
their  appropriate  duties  with  power  to  exercise  them. 

"  By  this  constitution  of  the  United  States,  supreme  legislative, 
judicial,  and  executive  powers  of  the  government  are  created, 
each  distinct  fi'om,  and  independent  of  the  other ;  each  entrusted 
with  a  portion  of  the  sovereign  authority  within  the  sphere  of  its 
prescribed  duties  and  powers."  a 

"  It  must  have  sovereign  authority,  within  the  prescribed  limits, 
to  enact  all  laws  necessaiy  for  the  government  of  the  society  com- 
posing the  nation ; "  and  this  power  was  therein  conferred.  - 

By  this  analysis,  we  find  this  delegated  authority  thus  con- 
ferred, distributed  into  three  departments  of  power,  and  each  m- 
dependent  of  the  other,  viz :  the  legislative,  the  judiciary,  and  the 
cxecidive. 

The  first,  is  the  power  to  make  new  laws,  and  to  correct,  repeal 

a  Tifl'any's  Araerican  Theory,  62. 

XoTE  2. — "All  legislative  powers  herein  granted  shall  be  vested  in  a  congress 
of  the  United  States,  which  shall  consist  of  a  Senate  and  House  of  Kepresent' 
atives."    Const.  U.  S.,  Art.  1,  Sec.  1. 


33-i  SOYEREIGN  TOILER. 

or  abrogate  tlio  old.  The  second,  is  tlic  poAver  to  apply  the  law 
to  particular  facts  ;  to  judge  of  differences  wliicli  may  arise  among 
citizens  or  inhabitants  of  the  state,  and  to  punish  crimes.  This 
Xwwer  is  vested  in  courts  of  justice.  The  third,  is  the  power  to 
cause  the  laws  to  be  executed.  This  power  is  exercised  by  a  single 
individual  as  President,  or  Governor. 

So  too,  "  a  government  thus  composed  must  have  supreme 
authority  to  interpret  and  apply  those  laws  to  the  rights  of  every 
individual  and  subject  within  its  jurisdiction."  This  was  also  a 
provision  of  this  fundamental  law.  ^ 

"  To  be  sovereign  in  its  judicial  department,  there  must  exist  no 
other  or  higher  tribunal  to  which  appeal  can  betaken  to  review  its 
final  judgments  or  decrees.  A  sovereign  judiciary  must  possess 
the  right  of  final  interpretation  and  decision  in  applying  the  law."  a 

"To  be  sovereign  in  its  executive  department  there  must  exist  no 
other  authority  to  stay  the  execution  of  its  judgments  and  decrees."  ' 

Thus  it  is  seen,  that  while  in  its  international  character,  the 
government  of  the  United  States  stands  equal  in  rank  and  equal 
in  its  powers  of  sovereignty  to  that  of  any  other  nation.  Yet  in 
the  exercise  of  its  powers,  in  behalf  of  and  towards  its  own 
citizens,  it  is  a  limited  government,  deriving  its  existence  and 
authority  from  the  people,  and  entrusted  by  them  with  the  exer- 
cise of  such  powers  only,  as  are  expressly  granted,  or  given  by 
necessary  implication,  in  the  constitution.  And  the  people,  in  the 
constitution  itself,  reserve  all  powers  not  delegated  to  the  United 
States  by  the  constitution,  nor  prohibited  by  it,  to  the  states  re- 
sj^ectively,  or  to  the  people.  '- 

These  departments  of  the  sovereign  power  are  still  knit  together 
by  one  common  bond ;  all  are  disposed  to  act  in  harmony  for  the 
promotion  of  the  great  ends  of  the  government,  its  security,  its 
preservation,  and  the  public  good. 

a  Tiffany's  Govt,  §  111. 

Note  3.— "The  judicial  power  of  the  United  States  shall  be  vested  in  one 
sui^reme  court,  and  in  such  inferior  courts  as  congress  may  from  time  to  time  or- 
dain and  establish."     Const.  U.  S.,  Art.  3,  Sec.  1. 

Note  4. — "The  executive  power  shall  be  vested  in  a  President  of  the  United 
States,  &c."    Const.  U.  S.,  Art.  2. 
Note  5.- Const.  U.  S.,  Art.  10. 


SOVEREIGN  rOWER.  335 

The  potential  powers  of  a  republican  government  which  exercise 
their  sovereignty,  to  wit :  the  legislative,  the  judiciary  and  the 
executive,  are  plainly  discovered  and  easily  distinguished,  as  are 
the  division  of  duties  conferred  upon,  and  responsibilities  assumed 
by  each  of  these  departments. 

It  is  easy  to  discover  in  this  organization,  that  it  is  one  of  the 
chief  offices  of  sovereignty,  to  prescribe  and  declare  to  others, 
what  they  ought  to  perform,  and  what  to  omit;  to  estabhsh  gen- 
eral rules  for  the  perpetual  information  and  du'ection  of  all 
persons,  in  all  points  either  of  positive  or  of  negative  duty ;  to 
determine  what  each  person  should  look  to  as  his  own,  and  what 
as  another's ;  what  is  to  be  regarded  as  lawful  or  unlawful  in  tlic 
state ;  what  is  honest  and  what  is  dishonest ;  what  degi-ee  of 
natural  liberty  each  person  retains,  and  what  he  has  suiTendered 
to  governmental  power,  and  after  what  manner  each  person  is  to 
exercise  and  regulate  his  own  private  rights,  in  order  to  secure  the 
public  good  and  public  tranquility ;  this  office  is  the  legislative 
power. 

Notwithstanding  laws  are  thus  prescribed,  duties  thus  enjoined, 
and  wrongs  thus  forbidden,  as  well  in  our  OAvn  theory  of  govern- 
ment as  in  all  others,  it  is  still  manifest  that  human  nature  is  im- 
perfect, and  in  many  persons,  greatly  corrupted,  so  that  experi- 
ment sadly  informs  us  of  the  great  want  of  reverence  for  pre- 
scribed laws.  For  which  likewise,  it  is  not  enough  to  have  a  power 
to  prescribe  rules  of  conduct,  and  for  the  exercise  of  rights,  and 
prohibition  of  wrongs,  if  it  is  invested  with  no  further  power.  To 
secure  therefore,  the  common  natural  rights  of  all  men,  as  well 
as  the  observance  of  those  particular  laws  which  are  enacted  for 
the  good  of  the  whole  people  of  a  state,  there  must  be  added,  not 
only  the  fear  of  punishment,  but  the  power  of  inflicting  what  is 
feared ;  this  is  another  of  the  objects  of  civil  government.  This 
power  is  the  judiciary  power,  which  is  supposed  to  come  to  the 
aid  of  legislative.  The  office  of  this  power  is  to  hear  and  decide 
the  causes  of  the  people  ;  to  examine  the  conduct  of  the  partic- 
ular persons  whose  rights  are  affected  by  breaches  of  the  pre- 
scribed laws ;  and  to  pronounce  a  proper  sentence  or  judgment 
according  to  the  prescribed  rules,  in  case  of  breach  or  violation. 

Still  these  powers  and  sovereignty,  of  prescribing  laws  and  pun- 


336  SOVEREIGN  rOWEB. 

ishing  its  violations,  would  be  inefficient  for  tlieir  designed  objects, 
without  anotlier  department  of  the  same  power ;  without  officers 
to  be  appoiuted  as  co-ordinate  magistrates  to  enquire  into,  pass 
upon,  and  settle  all  controversies  and  violations  of  law  arising  be- 
tween the  citizens  and  others,  and  between  the  public  and  the 
citizen ;  and  whose  duty  it  shall  be  to  put  the  laws  in  execution;  to 
compel  such  officers  when  once  appointed  to  the  performance  of 
their  duties ;  to  call  them  to  account  on  proper  occasions  for  its 
non-performance ;  and  also,  in  appropriate  cases,  to  possess  the 
powers  of  gi'ace  or  pardon.  This  co-ordinate  appomting  and  con- 
trolling power  is  called  the  executive  power. 

Thus  distributing  the  powers  of  sovereignty  into  distinct  coun- 
cils, or  bodies ;  it  must  necessarily  follow,  that  each  department 
exercising  its  appropriate  functions  and  duties,  must  have  con- 
ferred upon  it,  and  must  possess,  all  necessary  power  to  compel 
the  observance  of  those  things  of  which  it  is  given  cognisance ; 
for,  to  possess  a  right  of  declaring  to  others  what  they  should  do, 
or  submit  to,  and  yet  be  destitute  of  the  power  to  enforce  obedi- 
ence to  its  order,  would  be  to  leave  the  department  a  helpless  ex- 
crescence, and  a  vain  pretence,  destractive  of  the  ends  of  its  creation. 

It  is  to  be  observed,  in  this  comiection,  that  the  constitutions, 
national  and  state,  having  estabhshed  these  tliree  separate  depart- 
ments, has  also  assigned  to  each,  by  trae  implication,  distinct 
powers  and  duties ;  and  from  their  distinct  functions  and  the 
objects  committed  to  them,  there  is  also  the  necessary  impUcation 
which  has  grown  into  a  maxim  that  forbids  each  of  them  to  en- 
croach upon  the  powers  and  duties  of  either  of  the  others,  a  Each 
of  these  departments  exercises  its  powers  and  functions  upon 
objects  which  arise  under,  or  are  called  into  existence  by  the  con- 
stitutions, laws,  or  of  treaties.  "  These  departments  are  co-ordi- 
nate in  degree,  to  the  extent  of  the  powers  delegated  to  each  of 
them.  Each  in  the  exercise  of  its  powers,  is  independent  of  the 
other,  but  all  rightfully  done  by  either,  is  binding  upon  the  other. 
The  constitution  is  supreme  over  all  of  them,  because  the  people 
who  ratified  it,  have  made  it  so  ;  consequently,  any  thing  which 
may  be  done,  and  which  is  unauthorized  by  it,  is  unlawfid.''^ 

a  Luther  v.  Borden  7  How.  U.  S.  E.  1,  39. 
h  Dodge  V.  Woolsey  18   How.  U.  S.  E.  347. 


SOVEREIGN   POWER.  337 

But  Avheii  A\c  spcuk  of  govenimeuts  limited  by  "written  cou- 
stitutions,  we  ought  to  enquire  "wliat  is  a  constitution,  in  the  Ameri- 
can sense,  of  written  constitiitions  ?  It  may  be  well  answered  in 
the  language  of  Justice  Patterson,  a  of  the  supreme  court  of  the 
United  States  :  "  It  is  tlie  form  of  governments,  delineated  by  the 
mighty  hand  of  tlTe  pecjple,  in  which  certain  fust  principles  of 
fundamental  laws  are  estaV)lished."  The  constitution  is  certain, 
and  lixed;  it  contains  the  permanent  will  of  the  people,  and  is  the 
supreme  law  of  the  land ;  it  is  paramount  to  the  power  of  the 
legislature,  and  can  be  revoked  or  altered  only  by  the  authority 
that  made  it.  The  life-giving  principle,  and  the  death-doing 
stroke,  must  proceed  from  the  same  hand.  What  are  legislatui'es  ? 
Creatures  of  the  constitution ; — they  owe  their  existence  to  the 
constitution  ; — they  derive  their  powers  from  the  constitution.  It 
is  their  commission,  and  therefore  all  their  acts  must  be  conform- 
able to  it,  or  else  they  will  l)e  void.  The  constitution  is  the  work, 
or  will  of  the  people  themselves,  in  their  original,  sovereign,  and 
unlimited  capacity.  Law,  is  the  work,  or  will  of  the  legislatiu'e  in 
their  derivative  and  subordinate  capacity.  The  one  is  the  work 
of  the  creator,  the  other  of  the  creature.  The  constitution  fixes 
limits  to  the  exercise  of  legislative  authority,  and  prescribes  the 
orbit  witlmi  which  it  nuist  move.  The  constitution  is  the  sun  of 
the  political  system,  around  which  all  legislative,  executive  and 
judicial  bodies  must  revolve  ;  and  every  act  of  the  legislature  re- 
pugnant to  the  constitution  is  absolutely  void. 

Notwithstanding  the  limitation  of  power  imder  our  system  to 
the  executive,  as  well  as  to  the  other  departments  of  government, 
the  existence  of  a  government  with  sovereign  power,  is  constitu- 
tionally established ;  and  being  established,  none  wiU  deny  the 
necessit}'  of  its  possessing  all  needful  energy  to  fulfil  its  legitimate 
functions.  To  tlio  people,  is  committed  the  duty  of  the  selection, 
as  the  safest  depositories  of  this  power.  To  their  patriotism  and 
judgment,  must  we  look  for  a  faithful  exercise  of  the  duties  and 
pri\ileges  of  choice.  If  this  privilege  is  judiciously  and  discreetly 
exercised  as  the  theory  of  the  system  has  anticipated,  the  power 
Avill  become  vested  in  those,  whose  qualifications  are  best  adapted 
to  deliberation  and  wisdom,  and  best  calculated  to  conciliate  the 

a  Vau  Home's  Lessee  v.  Dorrauce,  2  Dall.  308. 
43 


338  SOVEKEIGN  POWEE., 

conscience  of  tlie  people,  and  to  secure  their  exalted  privileges  and 
highest  secular  interests.  The  quahties  most  befitting  the  execu- 
tive magistrate,  are  judgment,  decision,  activity,  energy,  secrecy 
and  despatch.  His  hne  of  duties,  are,  in  some  particulars,  de- 
fined by  the  constitution,  but  not  all ;  some  are  defined  by 
statute,— and  some  arise  by  necessary  implication  from  the  posi- 
tion. It  is  not  within  the  objects  of  this  work  to  treat  of  his  essen- 
tial duties.  It  is  sufiicient  to  say,  that  while  actmg  within  the 
sphere  of  his  duties,  he  is  entirely  independent  of  the  other  depart- 
ments. 

"We  have  elsewhere,  discussed  somewhat,  the  nature  and  extent 
of  the  powers  and  duties  of  the  other  departments. 

The  executive  magistrate,  whether  it  be  President  or  Governor, 
forms  an  integi'al  part  of  the  legislative  department,  and  possesses 
a  qualified  negative  upon  all  laws.  He  possesses  other  executive 
powers,  which,  as  they  do  not  belong  to  the  law  making  power,  it 
does  not  come  within. the  purpose  of  this  work  to  enumerate  or 
discuss.  This  negative  power  over  the  other  branches  of  the  leg- 
islative department,  is  a  conservative  power,  and  was  .>  intended  in 
degree,  to  check  the  legislature,  in  the  well  Imown  disposition  of 
that  body;  as  demonstrated  in  history  and  experience,  fi'om 
making  encroachments  upon  the  other  departments,  and  gradually 
assuming  to  itself  the  exercise  of  executive  and  judicial  power,  a 
The  apprehension  of  this  disposition  on  the  part  of  legislative 
bodies,  was  one  of  the  main  reasons  for  dividing  the  legislative 
body  into  two  departments,  of  Senate  and  House  of  Representa- 
tives, h  in  the  belief  that  the  one  might  act  in  degree,  as  a  re- 
straint upon  the  other.  Not  only  difierent  individuals,  but  difter- 
ent  bodies  of  individuals,  will  difier  as  to  the  extent  of  their  own 
powers,  and  to  the  natm-e  and  extent  of  constitutional  prohibi- 
tions ;  and  generally,  the  most  popular  branch,  are  more  easily 
moved  by  strong  passions  and  excitement,  under  the  temporary 
ascendency  of  some  impetuous  or  popular  leader,  to  act  with  less 
coolness  and  deliberation,  to  make  encroachments  upon  the  funda- 
mental law,  than  the  higher  branch  chosen  from  a  more  extended 
constituency. 

a  story  on  Const. ,  §  520. 

b  Federalist,  Nos.  GO,  G7  and  G8. 


CONSTITUTIONAL  AND   STATUTE   TOWERS.  339 

"One  great  ol)ject,"  says  Cliaueellor  Kent,  "of  the  separation 
of  the  legislature  into  two  liotises,  aeting  separately,  and  Avitli  co- 
ordinate poAvers,  is  to  destroy  the  evil  effects  of  sudden  and  strong 
excitement  and  of  precipitate  measures,  springing  from  passion, 
i;aprice,  prejudice,  personal  influence  and  party  intrigue,  which 
liave  been  found  by  sad  experience,  to  exercise  a  potent  and  dan- 
gerous sway  in  single  assemblies.  A  hasty  decision  is  not  so 
likely  to  arrive  to  the  solemnities  of  alaAV,  when  it  is  to  be  aiTested 
in  its  course,  and  made  to  undergo  the  deliberation,  and  probably 
the  jealous  and  critical  revision,  of  another  and  a  rival  body  of 
men,  sitting  in  a  different  place,  and  under  better  advantages  to 
avoid  the  prepossessions,  and  correct  the  eiTors  of  the  other 
branch." 

No  portion  of  the  political  history  of  mankind  is  more  full  of 
instructive  lessons  on  this  subject,  or  contains  more  striking  proof 
of  faction,  instability,  and  misery  of  states  under  the  single  domin- 
ion of  an  imchecked  assembly,  than  that  of  the  Italian  Eepubhcs 
of  the  middle  ages;  and  which  arose  in  gi'eat  numbers,  and  with 
dazzling  but  transient  splendor,  in  the  interval  between  the  fall  of 
the  western  and  eastern  empire  of  the  Komans.  They  were  all 
alike  ill  constituted,  with  a  single,  unbalanced  assembly.  They 
were  alike  miserable,  and  all  ended  in  similar  disgrace. 

Notwitstanding  the  wisdom  evinced  in  this  distribution  of  power 
among  the  departments  named,  there  is  found,  the  omission  to  fix 
with  precision,  the  hues  which  separate  the  duties  and  functions 
of  the  legislative,  from  the  judicial.  There  is  an  inherent  and 
practical  difficulty,  always,  in  confining  power  within  proper  boun- 
daries, and  especially  is  this  the  case,  in  the  absence  of  express 
provisions  in  the  fundamental  law  which  confers  the  power,  (if 
conferred  at  all,)  by  general  terms.  This  is  eminently  true  in  re- 
gard to  legislative  and  judicial  duties  under  our  system.  All  his- 
tory and  experience,  shows  the  disposition  of  legislative  bodies  to 
disregard  private  lights,  and  to  overstep  the  limits  of  that  depart- 
ment of  power.  Nor  is  it  without  example,  that  the  judiciary, 
whose  duty  it  is  so  to  declare,  when  laws  are  improperly  and  un- 
constitutionally enacted,  have,  in  turn,  acting  in  a  spirit  of  jeal- 
ousy at  the  encroachments  of  the  legislature,  sometimes,  also, 
overstepped  then*  own  sphere  of  duty ;  but  these  have  been  in- 


o4.0  <:OXSTITrTION.VL  AND   STATUTE   TOWEES. 

frequent,  and  less  conflict  luis  resulted,  than  perliaps  under  any 
other  system  that  has  ever  been  devised ;  so  that  with  time, — ex- 
perience,— free  discussion, — an  educated  and  intellectual  bar, — 
and  the  freedom  of  the  press, — it  will  doubtless  be  found  the 
wisest,  best,  and  most  protective  system  to  the  citizen,  that  has 
CTcr  been  devised  by  human  wisdom. 

"While  it  is  clear  to  the  apprehension  of  every  student  of  our 
system  of  jurispnideuco,  and  a  j)oint  conceded  by  every  jurist  and 
statesman,  that  it  was  the  clear  intent,  and  a  most  leadmg  feature 
and  idea  in  the  minds  of  the  framers  of  our  constitutions  of  the 
national  and  state  governments,  to  separate  and  distribute  the 
sovereign  power  of  the  governments  between  these  three  indepen- 
dent and  co-ordinate  departments;  and  though  these  constitu- 
tions have  not  in  express  terms  defined  or  limited  the  powers  of 
either,  it  is  equally  clear,  that  it  was  also  the  intent,  that  the 
executive  should  do  no  legislative  act,  the  legislative  no  executive 
act,  and  that  neither  of  these,  should  do  a  judicial  act,  nor  the 
judiciary,  an  executive  or  legislative  act.  a 

This  view,  makes  it  proper  at  this  place  to  say  a  few  words  as  to 
authority  of  the  judiciary  to  declare  legislative  acts  of  no  effect  in 
certain  cases. 

When  the  constitution  of  the  United  States  declared  that  the 
judicial  power  should  extend  to  the  cases  therein  specified,  it  did 
not  define  what  was  judicial  power.  It  was  doubtless  regarded  as 
unnecessary  to  enter  into  a  detail  of  the  specific  powers  of  the 
judiciary.  Courts  did  not  originate  in  constitutions ;  they  origin- 
ated m  the  common  law,  and  their  powers  were  then  as  well  estab- 
hshed,  and  understood,  as  any  other  question.  Their  powers  ex- 
isted, and  were  known  at  common  law.  By  adopting  a  judicial 
department,  they,  by  implication,  adopted  their  powers,  and  to 
whatever  extent  the  constitution,  or  statutes  enacted  under  it,  con- 
ferred a  new,  or  limited  an  existing  power,  the  authority  of  the 
judiciary  was  so  extended  or  restricted,  as  the  case  might  be. 
Without  such  extension  or  restriction,  the  constitution  and  statutes 
are  to  be  interpreted  by  the  common  law.  So  that,  every  court 
so  duly  constituted,  with  the  constitutional  declaration,  that  they 
shall  possess  judicial  power  in  all  cases  of  law  and  equity,  it  does, 

a  Sill  V.  Coruiug,  13  N.  Y.  11.  303;    Cooley  on   Const.  Lini.  171. 


CONSTITUTIONAL  AND   STATUTE   ^0\^•EES.  3-il 

inlierentlj,  aud  necessarily  possess  all  the  inciJeiitul  powers  of  a 
court  as  then  known  to  exist  at  coninion  law.  All  experience,  as 
well  as  universal  consent,  has  established  this.  If  the  courts  po.s- 
sessed  no  powers  but  such  as  are  declared  in  the  constitution  or 
statutes,  they  could  not  protect  themselves  from  insult  and  out- 
rage; they  could  not  enforce  obedience  to  their  immediate  orders; 
they  could  not  imprison  or  otherwise  punish  for  contempts  com- 
mitted in  tlieii"  presence  ;  they  could  not  compel  the  attendance 
of  witnesses,  nor  obhge  them  to  testify  when  present ;  they  could 
not  compel  the  attendance  of  jurors,  nor  punish  them  for  improper 
conduct.  These  powers  are  not  given  b}'  the  constitution ;  and 
wherever  statutes  have  been  enacted  on  these  subjects,  they  are 
not  grants  of  new  power,  but  simply  a  regulation  and  limitati(jn 
of  the  inherent  or  common  law  powers  of  the  coiut.  <i  It  is  then, 
the  common  law,  from  whence  we  derive  all  our  definitions,  terms, 
and  ideas,  which  forms  the  substratum  of  our  jurispmdence,  and 
the  interpretation  of  constitutional  and  legislative  provisions.  It 
is  not  possible  to  move  a  single  step  in  any  judicial  proceeding,  or 
to  execute  any  part  of  our  statutes,  or  of  our  constitutions,  with- 
out ha^'ing  recourse  to  the  common  law.  "When  a  constitution 
secures  a  "  trial  by  jmy,"  it  does  not  specify  the  number  of  wliicli 
it  shall  consist,  and  in  the  absence  of  a  statute  regulatmg  it,  we 
look  to  the  common  law,  to  find  it  means  twelve  men.  This  is  one 
of  numerous  illustrations  that  might  be  given.  But  where  courts 
are  created  by  written  law,  and  their  jmisdiction  defined  by  writ- 
ten law,  they  cannot  transcend  that  jimsdiction.  h 

To  judge  accm'ately  of  the  constitutional  intent  as  to  the  extent 
of  powers  conferred  upon  the  juchcial  department  in  the  absence 
of  express  specification  of  powers,  Ave  see  such  a  department  es- 
tablished, and  as  we  have  said,  its  powers  at  common  law  were  well 
and  fully  understood,  nor  could  Ave  do  such  injustice  to  the  AA'isdom 
and  intention  of  the  framers  of  those  instiiiments  as  to  suppose 
that  they  intended  to  create  an  equal  co-ordinate  department  of 
governmental  sovereignty  that  should  be  powerless  Avhen  created. 
Experience,  and  contemporaiy  practice,  in  the-exercise  of  judicial 
power,  confirms  the  idea,  that   the  fi-amers  intended   that  there 

a  King  of  Spain  v.  Oliver,  2  A;\'ash.  C.  C.  E.  429. 

h  Exparte,  BoUman  &  Swartout,  -4  Cranch.  93.  , 


342  CONSTITUTIONAL  AND   STATUTE   POWEES. 

should  be  a  constitutional  method  of  giving  efficacy  to  constitu- 
tional provisions.  What  for  instance,  would  avail  restiictions 
upon  legislative  power,  without  some  constitutional  mode  of  en- 
forcing the  observance  of  them  ?  The  several  states  by  the  na- 
tional constitution  are  prohibited  from  doing  a  variety  of  things  I 
some  of  which,  are  incompatible  with  the  interests  of  the  union, 
others  with  the  jorinciples  of  good  government.  No  sensible  man 
will  believe,  that  such  prohibitions,  would  always  be  scrupulously 
regarded  without  the  effectual  power  of  the  national  or  state 
judiciaries  to  restrain  and  correct  the  infractions  of  power.  This 
judicial  power,  must  possess  a  direct  negative  on  unconstitutional 
laws,  or  the  legislatures  remain  unrestrained,  and  humanly  speak- 
ing, omnipotent. 

While  treating  of  the  subject  of  couiis,  and  their  powers, 
it  may  be  well  to  notice  a  distinction  that  exists  between  them  as 
to  the  force  and  effect  of  judgments,  as  to  their  conclusiveness. 
There  is  one  class  of  courts  which  are  competent  by  their  very 
constitution,  to  decide  on  then'  own  jurisdiction,  and  to  exercise  it 
to  final  judgment  without  setting  forth  in  their  proceedings  the 
facts  and  evidence  upon  which  it  was  rendered.  The  record  of  such 
a  court,  is  an  absolute  verity,  not  to  be  impugned  by  averment  or 
proof  to  the  contrary ;  there  can  be  no  judicial  inspection  behind 
the  judgment,  except  by  an  ajipellate  power,  if  there  be  one.  The 
other  class  of  courts,  are  inferior  in  rank ;  they  are  so  constituted 
that  their  judgments  can  be  looked  through  for  the  facts  and  evi- 
dence which  are  necessary  to  sustain  them ;  their  judgments  and 
decisions  are  not  evidence  of  themselves  to  show  jurisdiction  and 
its  lawful  exercise.  Every  requisite  to  show  then-  jurisdiction 
must  appear  upon  the  face  of  their  proceedings,  or  they  are  nulli- 
ties. A  perfect  judgment  of  either  class,  concludes  the  subject  in 
which  it  is  rendered,  and  pronounces  the  law  of  that  case.  A 
judgment  of  court  of  record,  whose  jurisdiction  is  final, — is  con- 
clusive on  all  the  world.  It  puts  an  end  to  all  enqmiy  into  the 
fact  by  deciding  it.  a 

It  is  not  within  the  purpose  of  this  treatise,  to  enter  upon  a 
description  of  the  various  courts  of  the  nation,  and  states,  or  to 

a  Grequoiis  Lessee  v.  Astor  2   Hoav.  U.  S.  E.  Sil .  Elliot  v.  Peirsol,  3  Ptiiers  329 


POWEES   OF  THE  UEl'AIiTMENTS   OF  GO^TRNMENT.  313 

discuss  tlio  powers  confeiTcd  upou  tlicm  respectively  ;  this  is  more 
appropriately  the  province  of  the  writers  of  works  of  practice. 

In  this  American  theory  of  government,  we  see  the  exercise  of 
the  power  of  sovereignty,  internally,  among  its  own  citizens,  dis- 
tributed between  these  three  departments,  viz  :  the  executive,  the 
legislative,  and  the  judicial,  eacli  holding  its  appropriate  check 
upon  the  other ;  each  being  sovereign  in  the  exercise  of  tlie  powers 
of  its  own  department ;  each  deriving  its  authority  fi-om  the  same 
source,  the  constitution ;  each  linuted  in  its  powers  by  that  in- 
strument, and  each  equal  and  independent  of  the  other  depart- 
ment ;  but  all  combined,  possess  less  or  what  is  called  the  omni- 
potence of  civil  authority  than  the  Eughsh  parliament ;  because 
limited  by  the  fundamental  law,  the  written  constitution. 

"Whenever,  therefore,  the  officer  of  government  is  placed  in  the 
sphere,  of  either  legislative,  executive,  or  judicial  departments,  he 
is  bound  by  his  duty,  and  the  solemn  obligations  of  his  oath,  to 
support  the  constitutions  of  the  state  and  nation,  to  uphold  those 
fundamental  instruments  made  by  the  people.  Possessed  of  a 
portion  of  law-making  or  law-interpreting  power,  he  is  interdicted 
from  exercising  it  in  such  a  manner  as  to  injure  or  impair  the 
sources  from  which  his  authority  is  derived.  If  in  the  legislative 
department,  he  must  be  careful  to  commit  no  infractions  of  the 
constitution,  by  overstepping  its  limits  of  inhibition.  If  in  the  ex- 
ecutive branch,  he  must  carefully  avoid  every  act  which  may  have 
that  injurious  tendency.  If  in  the  judicial,  he  must  fairly  and 
patiently  compare  legislative  acts  with  both  constitutions,  and 
honestly  j)ronounce  upou  them  as  his  judgment  and  conscience 
shall  dictate,  without  regarding  consequences.  A  due  conformity 
to  the  oath  of  office  of  a  judge,  creates  duties  beyond  those  of 
passive  obedience.  It  requires  the  active  energies  of  the  mind, 
to  determine  on  the  constitutionability  of  those  laws,  which  may 
be  brought  before  him  in  judgment ;  and  in  his  decisions,  he  is 
bound  to  protect  those  paramount  laws,  which  he  has  sworn  to 
support,  a 

Eveiy  one  can  readily  see,  that  judges  may  sometimes  be  thrown 
into  a  dehcate  situation  by  the  exercise  of  this  constitutional  duty. 
They  are  subjected  to  the  law-making  power,  by  inqieachmeut, 

a  Emerick  v.  Harris,  1  Birney  421. 


344  rOTNTSES   OF  TEE   DErAllTMEISTS   OF  G0\1:KKMENT. 

and  if  that  be  ■wrongfullj  exerted,  lie  must  submit.  In  sucli  case, 
he  will  still  derive  consolation  from  the  integiity  of  his  own  mind, 
and  the  honest  feeling,  that  he  has  dischargedhis  duty  with  fidelity 
to  the  government.  Posterity  will  sooner  or  later  do  him  justice. 
Having  thus  x)resented  a  brief,  but  definite  view  of  the  distribu- 
tion of  the  j)owers  of  government,  with  the  appropriate  restric- 
tions belonging  to  each,  we  shall  not  attempt  to  enter  upon  the 
vast  field  of  inquuy  as  to  the  reasons  which  induced  the  fi'amers 
of  the  constitution  to  adopt  the  provisions  it  contained.  That 
inquiry,  properly,  belongs  to  political  history.  Our  inquiry  is,  in 
regard  to  the  source  of  the  law-making  poAver ;  what  powers  have 
been  conferred  to  this  end  ?  how  distributed,  and  to  whom  ?  and 
what  powers  each  department  may  exercise  ?  True,  with  these 
objects  before  us,  we  shall  be  called  upon  to  state  incidentally,  w^hy 
the  judiciary  should  be  separated  fi-om  the  other  departments,  and 
why,  the  others  from  it ;  why  this  system  of  checks  and  balances, 
making  the  system  more  complex,  is  indispensable  to  public  liberty 
and  protection  ?  It  is  therefore  sufficient  here  to  say,  that  these 
j)rovisions  in  the  written  constitutions  of  a  free  people,  are  the 
protection  and  preservation  of  the  personal  rights,  the  private 
property,  and  the  pubKc  liberty  of  the  whole  people.  Without 
accomplishing  these  ends,  the  government  may,  indeed,  be  called 
free,  but  it  would  be  a  mere  mockery,  and  a  shadow.  "  If"  says 
Judge  Story,  "  the  person  of  any  individual  is  not  secure  from 
assaults  and  injuries  ;  if  his  reputation  is  not  preserved  fi'om  gi'oss 
and  malicious  calumny ;  if  he  may  not  speak  his  own  opinions 
with  a  manly  frankness ;  if  he  may  be  imprisoned  without  just 
cause,  and  deprived  of  all  freedom  in  his  choice  of  occupations 
and  pursuits ;  it  will  be  idle  to  talk  of  his  liberty  to  breathe  the 
air,  to  bathe  in  the  public  stream  or  give  utterance  to  articulate 
language.  If  the  earnings  of  his  industry  may  be  appropriated, 
and  his  property  may  be  taken  away  at  the  mere  will  of  rulers, 
or  the  clamors  of  a  mob,  it  can  afford  little  consolation  to  him, 
that  he  has  already  derived  happiness  from  the  accumulation  of 
w^ealth,  or  that  he  has  the  present  pride  of  an  ample  inheritance  ; 
that  his  farm  is  not  yet  confiscated  ;  his  house  has  not  yet  ceased 
to  be  his  castle ;  and  his  cliildren  are  not  yet  reduced  to  beggary. 
If  his  public  liberties,  as  a  man  and  a  citizen,  liis  right  to  vote,  his 


POWERS  OF  THE  GOVERNMENT  AND  EIGHTS  OF  THE  CITIZEN.      345 

right  to  liokl  office,  his  right  to  -vvorshiii  God  according  to  the 
dictates  of  his  own  conscience,  his  equahty  with  all  others,  who 
are  his  fellow  citizens ;  if  these  are  at  the  mercy  of  the  neighbor- 
ing demagogue,  or  the  popular  idol  of  the  day ; — of  what  conse- 
quence is  it  to  him  that  he  is  permitted  to  taste  of  sweets,  which 
may  be  wantonly  dashed  from  his  lips  at  the  next  moment ;  or  to 
possess  privileges  which  are  felt  more  in  their  loss,  even,  than  iu 
their  possession  ?  Life,  liberty,  and  property  stand  upon  equal 
grounds  in  the  estimate  of  freemen ;  and  one  becomes  almost 
worthless  without  the  security  of  the  others.  How,  then,  are 
these  rights  to  be  established  and  preserved?  The  answer  is,  by  the 
constitutions  of  government,  wisely  framed  and  vigilantly  enforced ; 
by  laws  and  institutions,  deliberately  examined,  and  steadily 
administered  by  tribunals  of  justice  above  fear,  and  beyond  re- 
proach, whose  duty  it  shall  be  to  i)rotect  the  weak  against  the 
strong,  to  guard  the  unwary  against  the  cunning,  and  to  punish 
the  insolence  of  office,  and  the  spirit  of  encroachment  and  wanton 
injur}'.  It  needs  scarcely  to  be  said,  how  much  wisdom,  talents, 
discretion  and  virtue,  are  mdispensable  for  such  great  purposes. 

We  have  taken  upon  ourselves,  in  our  free  form  of  government, 
the  responsibiUty  of  accomplishing  all  these  ends  ;  the  protection 
and  preservation  of  personal  rights,  of  property,  and  pubhc 
liberty.  We  have  chosen  for  ourselves,  doubtless,  the  most  com- 
plicated fi-ame  of  republican  government  which  was  ever  offered 
to  the  world.  We  have  endeavored  to  reconcile  the  apparent 
anomaly  of  distinct  sovereignties,  each  independent  of  the  other 
in  its  own  operations,  and  yet  each  in  full  action  within  the  same 
territory.  The  national  government,  within  the  scope  of  its  dele- 
gated powers,  is,  beyond  all  doubt,  supreme  and  uncontrollable ; 
and  the  state  governments  are,  equally  so,  within  the  scope  of  theii 
exclusive  powers.  But  there  is  a  vast  variety  of  cases,  in  which 
the  powers  of  each,  are  concurrent  with  those  of  the  other ;  and  it 
is  almost  impossible  to  ascertain  with  precision,  where  the  lines  oi 
separation  between  them  begin  and  end. 

It  is  not  within  the  scope  of  this  work  to  treat  of  the  superioi 

wisdom  of  our  own  form  of  government,  or  to  compare  it  with  other 

forms;  nor   are  the  duties  of  the  executive  department  of  this, 

necessary  here  to  be  considered  any  further  than  it  is  necessarily 

44 


34G    rowEES  OF  the  goyeenment  xsj)  eights  of  the  citizen. 

involved  in  its  participation  with  the  legislative,  in  the  enactment 
of  laws.  It  is  -with  legislative  enactments,  and  with  the  judicial 
construction  or  interpretation  of  such  enactments,  that  this  work 
is  chiefly  confined. 

Besides  this  national  government,  there  also  exists  at  this  time, 
thirty-six  sovereign  and  independent  states,  component  parts  of 
the  national  government,  besides  several  teriitories,  inchoate  states, 
which  states  between  themselves,  like  the  national  government 
with  other  national  governments,  possess  the  powers  of  sover- 
eignty ;  but  as  between  themselves  and  their  citizens,  respectively, 
then-  powers  are  also  limited,  not  only  by  written  constitutions  of 
their  own,  established  by  the  people  as  the  source  of  powder,  but 
have  also  other  limitations  and  restrictions  imposed  upon  them  by 
the  grants  of  power  given  by  them,  and  the  people  thereof  as 
members  of  the  American  nationality  to  the  national  government, 
the  supremacy  of  which  in  certain  particulars,  imposes  limits  to 
the  legislative  powers  of  such  several  states ;  which  limits,  none 
have  a  right  to  pass,  a  Each  state  in  its  Eovereign  capacity  of 
speaking,  by  its  people  having  conceded  a  portion  of  its  sover- 
eignty to  the  establishment  of  the  Union,  the  national  constitution 
acts  upon  them,  conjunctively,  and  separately,  as  it  does  upon  its 
citizens,  h ''' 

These  written  constitutions,  based  upon  the  principles  set  forth 
in  the  declaration  of  independence,  which  is  to  be  regarded  as  the 

a  Marshall,  J.  G  Cranch.  13G.  h  Dodge  v.  Woolsey,  18  How.  351. 

Note  6. — The  several  states  of  the  Union,  form,  for  many,  artd  for  most  im- 
portant purposes,  a  single  nation;  and  the  federal  government,  in  effecting 
the  objects  for  which  it  was  instituted,  can,  in  those  particiilars,  legitimately  con- 
trol all  individuals  or  governments  within  the  American  territorj'.  Cohens  v. 
Virginia,  6  Wheat.  413-14.  For  all  national  piuposes  embraced  by  the  federal 
constitution,  the  states,  and  the  citizens  thereof,  are  one,  united  under  the  same 
sovereign  authority,  and  governed  by  the  same  laws;  in  all  other  respects,  the 
states  are  necessarily  foreign  and  independent  of  each  other.  Bxickner  v.  rinle3% 
2  Pet.  590;  Dodge  v.  Woolsey,  18  How.  350.  The  respective  states  are  sovereign 
within  their  own  limits,  and  foreign  to  each  other  regarding  them  as  local  govern- 
ments. Bk.  of  U.S.  v.  Daniel,  12  Pet.  33.  The  Union  was  formed,  by  each  of 
the  states  conceding  portions  of  their  equal  sovereignties  for  all  of  them,  and  the 
United  States  constitution  acts  upon  them  conjunctively  and  separately,  as  it  does 
also  upon  their  citizens.  Dodge  v.  Woolsey,  18  How.  351.  And  this  union  of  the 
btates  is  indissoluble  by  the  act  of  any  one,  or  of  any  portion  of  them. 


rO\VEl!.S  01'  THE  GOVERNMENT  AND  RIGHTS  OF  THE  CITIZEN.      347 

interpreter  of  them,  arc  tlie  avowal,  that  in  a  rcpubhcan  foiiu  of 
government,  all  freemen,  when  they  enter  into  organized  society, 
are  equal;  that  no  man  or  set  of  men  is  entitled  to  exclusive  privi- 
leges from  the  community ;  that  absolute  and  arbitrary  sovereign 
power  over  the  lives,  liberty  or  property  of  the  citizen  exists  in 
no  one  department  of  the  government,  not  even  by  a  vote  of  a 
majority  of  the  people  ;  that  all  power  is  inherent  in  the  people  ; 
that  all  free  government,  is  founded  on  their  authority,  and  insti- 
tuted for  their  peace,  safety,  happiness,  security  and  protection  of 
property ;  that  for  the  advancement  of  these  ends,  they  continue 
to  possess  the  inalienable  and  undefeasible  right  to  alter,  reform 
or  abolish  their  existing  government,  and  to  establish  another  upon 
the  same  basis,  and  controlled  by  the  same  general  principles; 
that  all  elections  shall  bo  fi-ee  and  equal,  and  full  protection  to  be 
given  against  the  abuse  of  its  privileges ;  that  no  power  for  sus- 
pending the  laws  shall  be  exercised  by  any  department,  but  in 
pursuance  of  established  constitutional  law. 

In  looking  at  these  constitutional  guaranties,  while  the  citizen 
is  secured  and  protected  by  them,  he  is  not  indebted  to  them,  for 
these  inherent  and  inalienable  rights.  Though  they  measure  and 
limit  the  powers  of  the  rulers,  they  do  not  measure  the  rights  of 
the  ruled.  Constitutions  are  not  the  origin  of  society,  or  of  pri- 
vate rights ;  it  is  not  the  fountain  of  law  ;  or  of  power ;  "  it  is  not 
the  cause,  but  the  consequence  of  personal  and  pohtical  freedom ; 
it  grants  no  right  to  the  people,  but  is  the  creature  of  their  power, 
the  instrument  of  their  convenience."  Constitutions  were  designed 
for  the  protection  of  the  people  in  the  enjoyment  of  their  rights, 
and  in  the  powers  which  they  possessed  before  the  constitution 
was  made ;  it  is  frame-work  of  the  pohtical  government,  and  is 
necessarily  based  upon  the  pre-existing  condition  of  laAvs,  rights, 
habits,  and  modes  of  thought.  There  is  nothing  j^rimitivo  in  it ; 
it  is  all  derived  fi-om  the  source  and  fountain  of  power  and  right. 
"  It  presupposes  an  organized  society ;  law,  order,  property,  per- 
sonal fi'eedom,  a  love  of  political  liberty,  and  enough  of  cultivated 
iutelhgence  to  know  how  to  guard  it  against  the  encroachments  of 
tyranny.  A  -vmtten  constitution  is  in  every  instance,  a  limitation 
of  the  powers  of  the  government  in  the  hands  of  agents  ;  for  there 
never  was  a  written  republican  constitution  which  delegated  to 


318      POWERS  OF  THE  G0^-EE^"5IE^"T  A^"D  EIGHTS  OF  THE  CITIZEN. 

fuuctionaiics  all  the  latent  powers  -wliicli  lie  dormant  in  every 
nation,  are  boundless  in  extent,  and  incapable  of  definition."  a 
"  When  therefore  we  are  seeking  for  the  true  construction  of  a 
constitutional  provision,  we  are  constantly  to  bear  in  mind  that  its 
authors  were  not  executing  a  delegated  authority  limited  by  other 
constitutional  restraints,  but  are  to  look  on  them,  as  the  founders 
of  a  state,  intent  only  on  establishing  such  principles  as  seemed 
best  calculated  to  produce  good  government,  and  promote  the  pub- 
lic happiness,  at  the  expense  of  any  and  all  existing  institutions 
which  might  stand  in  the  way."  b 

The  declaration  of  independence  made  the  then  thk'teen  colo- 
nies sovereign  and  independent  states,  thereby  abolishing  all  Eng- 
lish, and  other  foreign  jurisdiction,  and  substituting  a  national 
government  of  their  own  creation.  New  states  have  since  been 
added  from  time  to  time  from  territory  under  the  national  control, 
the  precise  position  and  actual  power  of  which,  it  is  not  our  pur- 
pose to  discuss,  except  in  so  far  as  relates  to  the  legislative 
power  of  enacting  statute  laws,  and  the  judicial  interpretation  and 
construction  thereof,  with  the  limitations  of  legislative  and  judi- 
cial power  affecting  the  same. 

In  order  to  prevent  colhsions  of  legislative  or  judicial  authority 
between  the  national  and  state  governments,  which  would  other- 
wise be  inevitable,  as  weU  as  dangerous  to  the  peace,  harmony 
and  stabiHty  of  the  Union  imder  such  a  sj'stem,  it  was  wisely  pro- 
vided in  the  constitution  of  the  "United  States,  that  it,  and  the 
laws  of  the  United  States  which  should  be  made  in  pursuance 
thereof,  should  be  the  supreme  law  of  the  land,  and  the  judges  in 
every  state  should  be  bound  thereby,  anything  in  the  constitution 
or  laws  of  any  state  to  the  contrary  notwithstanding,  c 

Besides  this  superiority  of  power  in  certain  respects,  conferred 
upon  the  national  government  by  the  terms  of  the  national  con- 
stitution itself,  it  also  contains  express  prohibition  of  the  exercise 
of  state  authority  in  certain  specified  particulars,  to  wit :  "  No 
state  shall  enter  into  any  treaty,  alHance  or  confederation ;  grant 
letters  of  marque  and  reprisal ;  coin  money ;  emit  bills  of  credit 

a  Cooley  on  Const.  Lim.  37. 

h  Matter  of  the  Oliver  Lee  Bank,  21  N.  Y.  12. 

c  U.  S.  Const.,  Art.  6. 


OF  CONSTITUTIONAL  POWERS  AND   LIMITATIONS.  349 

maK.0  any  thing  but  gold  aud  silver  coin  a  tender  in  payment  of 
debts  ;  pass  any  bill  of  attainder,  or  ex  post  f ado  laic,  or  law  im- 
pairing the  obligation  of  contracts ;  or  grant  any  title  of  nobility." 

"  No  state  shall  Avithout  the  consent  of  congress,  lay  any  imports 
or  duties  on  imi)orts  or  exports,  except  -what  may  be  absolutely 
necessary  for  executing  its  inspection  laws ;  and  the  net  produce 
of  all  duti(^s  and  imports  laid  by  any  state  on  imports  or  exports, 
shall  be  for  the  use  of  the  treasury  of  the  United  States,  and  all 
such  laws  shall  be  subject  to  the  revision  and  control  of  congress. 
No  state  shall,  without  the  consent  of  congress,  lay  any  duty  of 
tonnage,  keep  troops  or  ships  of  war  in  time  of  peace,  enter  into 
any  agreement  or  compact  with  another  state,  or  with  a  foreign 
power,  or  engage  in  war,  unless  actually  invaded,  or  in  such  immi- 
nent danger  as  will  not  admit  of  delay." 

While,  in  the  above  enumerated  particulars,  the  several  states 
are  made  to  yield  to  the  federal  government  the  exclusive  superi- 
ority of  authority ;  as  a  kind  of  compensation  therefor,  the  con- 
stitution of  national  government  contains  a  power  of  proteclion 
and  guardianship  over  states,  to  prevent  discrimuiation  by  the 
several  states,  against  the  citizens  and  pubHc  acts  and  proceed- 
ings of  other  states;  among  wliich  are,  that  "full  faith  and  credit 
shall  be  given  in  each  state  to  the  public  acts,  records,  and  judi- 
cial proceedings  of  every  other  state."  a  "  The  citizens  of  each 
state  shall  be  entitled  to  all  privileges  and  immunities  of  citizens 
in  the  several  states."  h  "A  person  charged  in  any  state  with 
treason,  felony,  or  other  crime,  who  shall  flee  from  justice,  and  be 
found  in  any  other  state,  shall,  on  demand  of  the  executive  author- 
ity of  the  state  fi'om  which  he  fled,  be  delivered  up  to  be  removed 
to  the  state  having  jurisdiction  of  the  crime."  c  "  The  United 
States  shall  guarantee  to  every  state  in  this  Union  a  rcpubhcan 
form  of  government,  and  shall  protect  each  of  them  against  in- 
vasion." d 

Such  are  the  express  provisions  of  the  federal  constitution. 
There  are  also,  certain  implied  powers,  which,  by  judicial  inter- 
pretation of  the  federal  courts,  are  possessed  by  the  general  gov- 
ernment, and  which  powers  are  prohibited  to  the  states.     All 

a  Const.  U.  S.,  Art.  4.  c  Id. 

I)  Id.  d  Id. 


350  OF  CONSTITUTIONAL  rO"S\T:RS  AND   LimTATIONS. 

powers  in  the  federal  constitution,  wliicli  are  necessarily  implied, 
from  the  powers  expressly  gi'anted,  and  which  are  necessary  to 
carry  the  express  powers  into  effect,  are  as  much  a  part  of  the 
constitution,  as  its  express  powers ; — and  such  imphed  powers,  are 
also  as  much  prohibited  to  the  states,  a  as  if  they  had  been  ex- 
pressly forbidden. 

From  this,  it  results,  as  was  well  expressed  by  Ch.  J.  Marshal] 
in  McCulloch  v.  State  of  Maryland,  "  that  the  government  of  the 
Union,  though  hmited  in  its  powers,  is  supreme  Avithin  its  sphere 
of  action."  "It  is  the  government  of  all ;  its  powers  are  delegated 
by  all ;  it  represents  all,  and  acts  for  all.  Though  any  one  state 
may  be  willing  to  control  its  operations,  no  state  is  willing  to  allow 
others  to  control  them.  The  nation,  on  those  subjects  upon  which 
it  can  act,  must  necessarily  bind  its  component  parts." 

This  outlme  of  powers,  conferred  upon  the  federal  government 
becomes  necessar}'^  to  be  presented  for  consideration,  as  they  fall 
within  the  range  of  questions  embraced  in  the  design  of  this  work  ; 
inasmuch,  as  rules  for  the  construction  of  the  statutes  passed  by 
the  national  legislature,  are,  in  degree,  and  to  a  limited  extent, 
matters  with  which  we  shall  deal. 

The  judicial  powers  and  jurisdiction  of  the  courts  of  the  federal 
government,  are,  as  we  have  seen  in  part,  but  not  fully  and  speci- 
fically, enumerated  in  the  constitution.  Congress  is  left  with  the 
power  to  confer  such  jurisdiction,  and  to  institute  such  proper 
courts  and  tribunals,  inferior  to  the  supreme  court,  h  as  shall  se- 
cure the  harmonious  and  efficient  working,  of  a  system  of  national 
jurisprudence  under  the  constitution,  not  onlj',  but  in  a  class  of 
cases,  in  the  discretion  of  congress,  to  make  the  jurisdiction  ex- 
clusive, or  not,  of  state  courts,  c  as  policy  may  dictate.  In  still 
another  class  of  cases,  the  states  are  permitted  to  legislate  and 
give  jurisdiction  to  state  courts  upon  the  same  subjects,  and  such 
state  laws  remain  valid,  until  the  power  of  congress  is  exercised ; 
when  the  state  laws  will  then  become  superceded,  so  far  as  they 
are  in  conflict  with  a  law  of  congress  on  that  subject,  d 

a  McCulloch  v.  Maryland,  4  Wheat.  427;  Weston  v.  City  of  Charleston,  2  Peters 
4C7;  Sturgis  v.  Crowninshield,  4  Wheat.  103. 

h  Const.  U.  S.,  Art.  1,  §  8,  and  Art.  3,  §  2. 

c  Martin  v.  Hunter's  Lessees,  1  Wheat.  334. 

d  Sturgis  V.  Crowninshield,  4  Wheat.  122,  192-3. 


OF   COXSTITUTION.VL   rOWEI'.S  AND   LIMITATIONS.  351 

The  whole  idea  of  the  powers  of  the  federal  govemmeiit,  as  cou- 
tained  in  its  constitution,  is  summed  up  in  this :  "  It  was  ordained 
and  estabhshed  by  the  people  of  the  United  States  for  themselves, 
for  their  own  government,  and  not  for  the  government  of  the  in- 
dividual states.  Each  state  established  a  constitution  for  itself, 
and  in  that  constitution,  provided  such  limitations  and  restrictions 
upon  the  powers  of  its  particular  government,  as  its  judgment  dic- 
tated. The  people  of  the  United  States,  framed  such  a  govern- 
ment for  themselves,  as  they  supposed  best  adapted  to  then  situ- 
ation, and  best  calculated  to  promote  their  interests.  The  powers 
they  conferred  on  this  government,  were  to  be  exercised  by  itself ; 
and  the  hmitations  on  power,  if  expressed  in  general  terms,  are 
naturally  and  necessarily  applicable  to  the  government  created  by 
the  instrument.  They  are  limitations  of  power  gi'anted  in  the  in- 
strument itseK ;  not  of  distmct  governments,  framed  by  different 
persons,  and  for  different  pui-poses."  a 

Properly  understood,  there  is  no  conflict  of  sovereignty  or  juiis- 
diction  between  the  national  and  state  governments.  In  one 
sense,  both  are  sovereign,  and  yet  as  we  have  shown,  in  another 
sense,  each  is  limited  by  its  written  constitution.  The  authority 
exercised  by  each  state  over  matters  within  its  jurisdiction,  is 
sovereign  and  absolute.  It  has  its  origin  also,  in  the  people  within 
its  territorial  limits  who  determine  the  extent  and  limitation  of  its 
power.  It  thus  possesses  all  authority  so  confeiTed  upon  it,  of 
legislative,  judicial  and  executive  power,  and  is  competent  to  regu- 
late, control  and  direct  the  will  of  the  whole,  and  of  every  subor- 
dinate member  of  the  state. ' 

a  Barron  v.  Mayor,  &.c.,  of  Baltimore,  7  Peters  217. 

XoTE  7.— The  constitution  of  the  United  States  is  supreme  over  all  the  depart- 
ments of  government,  and  any  thing  which  may  be  done,  unauthorized  by  it,  is 
unlawful.  Dodge  v.  "Woolsey,  18  How.  317.  It  is  supreme  over  the  people  of  the 
"United  States,  aggregate,  in  their  separate  sovereignties,  because  they  have  ex- 
cluded themselves  from  any  direct  or  immediate  agency  in  making  amendments 
to  it,  ibid.  The  government  of  the  Union  is  a  government  of  the  people;  it 
emanates  from  them;  its  powers  are  granted  by  them;  and  are  to  be  exercised 
directly  on  them,  and  for  their  benefit.  McCuUoch  v.  Maryland,  i  Wheat.  31G. 
The  constitution  was  made  for  the  benefit  of  every  citizen  of  the  United  States, — 
and  there  is  no  citizen,  whatever  his  condition — or  wherever  he  may  be, — within 
the  territory  of  the  United  States,  who  has  not  a  right  to  its  protection.  U.  S.  v. 
More,  3  Cranch.  ICO.     Therefore  an  act  of  congress  passed  in  pursuance  of  clear 


352  OF  CONSTTTUTION-VL  rO\\'Er>S   AND   Li:iHTATION.S, 

But  wliile  the  several  states  of  the  L'liion  are  thus  hmited  by 
theu'  own  waitten  constitutions,  and  by  the  grant  of  power  to  the 
national  govermnent ;  yet  in  all  matters  where  no  question  of  na- 
tional authoiity  is  involved,  their  sovereignty  and  power  is  so  abso- 
hite,  that  the  national  courts  hold  themselves  bound  to  accept 
aid  ado}  t  the  decisions  of  the  state  courts  as  con-ect  expositions 
of  their  statutes  and  common  law,  and  to  follow  their  authority 
whenever  the  same  question  arises  in  the  national  courts,  a  In- 
deed it  is  so  expressly  enacted  by  an  act  of  congi'ess  called  the 
judiciary  act  of  1789. 

It  was  competent  to  the  people  to  invest  the  general  government 
with  all  the  powers  which  they  might  deem  proper  and  necessary ; 
to  extend  or  restrain  those  powers  according  to  their  own  good 
pleasure ;  and  to  give  them  a  paramount  and  supreme  authority. 
The  people  also  had  a  right  to  prohibit  to  the  states  the  exercise 
of  any  powers,  which  were,  in  their  judgment,  incompatible  with 
the  objects  of  the  general  compact ;  to  make  the  powers  of  the 
state  governments,  in  given  cases,  subordinate  to  those  of  the  na- 
tion ;  or  to  reserv-e  to  themselves  those  sovereign  authorities  which 
they  might  not  choose  to  delegate  to  either,  and  it  must  therefore 
be  assumed  they  have  done  so.  The  constitution  of  the  United 
States  was  not,  necessarily,  carved  out  of  existing  state  sovereign- 
ties, nor  a  surrender  of  power  already  existing  in  state  institutions. 
The  powers  of  the  states  depend  on  their  own  constitutions,  and 
the  people  of  every  state  had  a  right  to  modify  or  restrain  them, 
according  to  their  own  views  of  poHcy  or  principle.  So  on  the 
other  hand  the  sovereign  powers  vested  in  the  state  governments, 
by   their  respective   constitutions,  remain  unaltered  and  imim- 

a  Sumner  v.  Hicks,  2  Black.  532;  Jefferson  Br.  Bank  v.  Skellj',  1  Black.  43G; 
McKeenv.  DeLancy's  Lessee,  5  Cranch.  29;  Massingule  t.  Downs,  7  How,  707/ 
Nesmitli  v.  Sheldon,  id.  812. 

authority  under  the  constitution,  is  the  supreme  law  of  the  land.  U.  S.  v.  Hart, 
Pet.  C.  C.  R.  390.  And  no  state  law  can  take  away  rights  and  privileges  secured 
by  the  constitution  and  laws  of  the  United  States.  U.  S.  v.  Eathbone,  2  Paine 
579.  "Where  an  unqualified  power  is  granted  to  the  general  government,  and  the 
exercise  of  the  same  power  by  the  state  governments  would  be  inconsistent  with 
the  express  grants,  such  power  vests  exclusively  in  the  general  government. 
Golden  v.  Prince,  3  Wash.  C.  C.  R.  313. 


OF  CONSTITUTION.^.  ^O^YE^.S  AND   LIMITATIONS.  353 

paired,  except  so  far  as  tliey  were  granted  to  the  govemment  of 
tlie  United  States,  a 

The  laws  of  the  United  States  in  their  operation  withmthe  state 
governments  are  not  to  be  considered  as  laws  of  a  foreign  govern- 
ment, but  as  laws  operating  upon  and  binding  the  same  people  as 
the  government  and  laws  of  the  several  states,  h  ^ 

a  Martin  v.  Hunter,  1  Wheat.  32-1.       b  Stearns  v.  United  States,  2  Paine  E.  300. 

Note  8.— To  prevent  all  conflict  between  the  federal,  and  the  state  govern- 
ments, it  was  wisely  provided  by  an  act  of  congress  passed  September  24,  1789, 
among  other  things  as  follows,  §  34,  "  The  laws  of  the  several  States,  except  when 
[he  constitution,  treaties  or  statutes  of  the  United  States,  shall  otherwise  require 
or  provide,  shall  be  regarded  as  rules  of  decision  in  trials  at  common  law,  in  the 
courts  ot  the  United  States  in  cases  where  they  apply."  This  was  but  the  expres- 
sion of  the  spirit  of  the  constitution,  and  would  be  but  a  reasonable  common  luw 
construction,  upon  the  national  and  State  constitutions  interpreted  together. 

The  decisions  of  the  state  courts,,  concerning  the  title  to  lands,  are  to  be  treated 
as  binding  authorities  in  the  courts  of  the  United  States.  Eundle  v.  Delaware 
and  Raritan  Canal  Co.  14  How.  93;  Polk's  Lessee  v.  Wendal,  9  Cr.  87;  Thatcher 
V.  Powell,  G  "\Vh.  119  ;  Elmendorf  v.  Taylor,  10  Id.  152  ;  Eoss  v.  Barland,  1  Pet. 
Go5;  The  Society  for  the  Propogation  of  the  Gospel  v.  "Wheeler,  2  Gall.  138.  The 
courts  adopt  the  state  decisions,  because  they  settle  the  law  applicable  to  the 
case;  and  the  reasons  assigned  for  this  course  apply  as  well  to  rules  of  construc- 
tion growing  out  of  the  common  law,  as  the  statute  law  of  the  state,  when  applied 
to  the  title  to  lands.  Sims  v.  Irvine,  3  Dall.  425,  456;  Waring  v.  Jackson,  1  Pet. 
570;  Davis  v.  Mason,  Id.  503;  Hamilton  v.  Dudley,  Id.  2,  Id.  492;  Hinde  v.  Yal- 
lier,  5  Id-  398;  Clarke  v.  Smith,  13  Id.  195  ;  Wilcox  v.  Jackson,  Id.  498;  Amis  v. 
Smith,  IG  Id.  303;  Fisher  v.  Ilaldemau,  20  How.  18G;  Miles  v.  Caldwell,  2  Wall. 
35;  Jackson  v.  Chew,  12  Wh.  1G7.  The  decisions  of  the  state  courts  settling  a  rule 
ot  construction  of  devises  of  lands,  is,  therefore,  within  the  law  and  binding  on 
the  federal  courts.  Ibid  153;  Henderson  v.  Griffen,  5  Pet.  151;  Smith  v.  Shriver, 
14  Leg.  Int.  172.  So  is  a  decision  on  the  state  law  of  descents.  Gardner  v.  Col- 
lins, 2  Pot.  58.  So  is  a  decision  of  the  question  whether  the  statute  of  uses  is  a 
part  of  the  common  law  of  the  state.  Henderson  v.  Griffen,  5  Pet.  151.  And  so 
are  decisions  as  to  the  lien  of  judgments  on  real  estate.  Massingill  v.  Downs,  7 
How.  760;  United  States  v.  Morrison,  4  Pet.  124  ;  Thompson  v.  Phillips,  Bald. 
24G;  Lombard  v.  Bayard,  1  Wall.  Jr.  198.  And  in  construing  a  statute  of  a  state 
concerning  lands,  the  supreme  court  adopts  the  construction  settled  in  the  state 
courts,  though  not  in  accordance  with  its  own  opinion.  McKeen  v.  DeLancy's 
Lessee,  5  Cr.  22.  The  settled  construction  of  a  state  statute  by  its  supreme  court, 
is  considered  as  a  part  of  its  statute.  Massingill  v.  Downs,  7  How.  767;  Kesmith 
V.  Sheldon,  Id.  812;  Van  Rensselaer  v.  Kearney,  11  Id.  297;  Webster  v.  Cooper,  14 
Id,  504;  Green  v.  James,  2  Curt.  C.  C.  189  ;  Woolscy  v.  Dodge,  G  McLean.  150; 
Thompson  v.  Phillips,  Bald.  246;  United  States  v.  Mundel,  G  Call.  245. 

This  law  adopts  the  acts  of  limitations  of  the  several  states,  where  no  special 
provision  has  been  made  by  congress,  as  rules  of  decision  in  the  courts  of  the 
45 


354  OF  CONSTITUTIONAL    TOWEES  AND   LIMITATIONS. 

A  coustitutiou  then,  is  tlie  fimdamental  law  of  the  nation,  or 
state,  containing  the  principles  upon  which  the  government  is 
founded,  and  regulating  the  division  of  the  sovereign  power  into 
departments,  directing  to  what  persons  each  of  these  powers  is  to 
be  confided,  and  the  manner  in  Avliich  it  is  to  be  exercised ;  it  is 

United  States,  aud  the  same  effect  is  given  to  them  as  in  the  state  courts.  Mc- 
Cluny  V.  Silliman,  3  Pet.  270;  Green  v.  Neal's  Lessee,  6  Ibid.  291;  Eossv.  Duval, 
13  Ibid.  45;  Shelby  v.  Gny,  11  "Wh.  3G1;  Boyle  v.  Arledge,  Hemp.  G20.  Bi;t  not 
as  against  the  federal  government.  United  States  v.  Backus,  G  McLean,  443.  It 
also  includes  the  statutes  of  the  several  states  which  prescribe  rules  of  evidence 
in  civil  cases.  McNiel  v.  Holbrook,  12  Pet.  84;  Hinde  v.  Vattier's  Lessee,  5  Ibid. 
398.  But  no  state  law  made  since  1789  can  effect  the  rules  of  evidence  in  crim- 
inal cases  in  the  federal  courts.     United  States  v.  Eeid,  12  How.  3C1. 

The  act  of  congress  adoi^ts  the  local  laws  of  the  several  states  as  rules  of  deci- 
sion, but  it  does  not  apply  to  the  construction  of  contracts,  or  to  questions  of  gen- 
eral commercial  law.  Swift  V.  Tyson,  16  Pet.  1;  Watson  v.  Tarplej',  18  How. 
520;  Glouce.ster  Insurance  Co.  v.  Younger,  2  Curt.  C.  C.  322.  Nor  to  the  construc- 
tion of  private  statutes.  Williamson  v.  Berry,  8  How.  543.  It  api^lies  only  to 
the  rights  of  persons  and  of  property,  and  in  those  cases  the  state  laws  furnish 
rules  of  decision;  but  as  to  remedies  and  modes  of  proceeding,  they  are  fixed  by 
the  act  of  1792.  Mayer  v.  Foulkrod,  4  W.  C.  C.  349;  Campbell  v.  Claudius,  Pet. 
C.  C.  484;  Lane  v.  Townsend,  Ware.  288;  Jones  v.  Vanzants,  4  McLean  606; 
Chicago  City  v.  Bobbins,  2  Black.  428.  It  relates  to  the  rules  for  framing,  not 
for  executing  the  judgment.  Wayman  v.  Southard,  10  Wh.  1;  Parson  v.  Bedford, 
3  Pet.  444;  Keary  v.  Farmers'  and  Merchants'  Bank,  16  Ibid.  89;  Long  v.  Smith, 
Ibid.  65.  It  has  nothing  to  do  with  the  proceedings  after  judgment;  it  means 
only  that  the  judgment  shall  be  rendered  according  to  the  laws  of  the  state.  Bee- 
side's  Executrix  v.  United  States,  Dev.  C.  C.  99,  101.  It  is  broad  enough,  how- 
ever, to  cover  the  rights  of  parties  to  costs.     Hathaway  v.  Boach,  2  W.  &  M.  63. 

The  supreme  court  will  adhere  to  its  own  decision  upon  the  validity  of  a  con- 
tract, notwithstanding  subsequent  state  decisions  declaring  it  unconstitutional. 
Piowan  V.  Bunnels,  5  How.  134;  Truly  v.  Wanzer,  Ibid.  141;  Sims  v.  Hundley,  6 
Ibid.  1.  But  not  in  a  case  involving  simply  the  construction  of  a  state  statute. 
Green  v.  Neal's  Lessee,  6  Pet.  291 ;  Woolsey  v.  Dodge,  6  McLean,  150. 

A  court  of  the  United  States  cannot,  by  a  rule,  adopt  the  provisions  of  a  state 
law,  which  is  repugnant  to,  or  incompatible  with,  a  positive  enactment  of  con- 
gress. Keary  v.  Farmers'  and  Merchants'  Bank,  16  Pet.  89;  Amis  v.  Smith, 
Ibid.  312;  Massingill  v.  Downs,  7  How.  7G0. 

It  does  not  extend  to  cases  in  equity.  United  States  v.  Eeid,  12  How.  363; 
Neves  v.  Scott,  13  Ibid.  268;  McFarlane  v.  Griffith,  4  W.  C.  C.  585.  Or  in  ad- 
miralty.  The  Independence,  2  Curt.  C.  C.  350.  It  means  trials  in  a  court  of 
common  law,  when  exercising  that  ai;thority,  as  contrasted  with  the  courts  of 
admiralty  and  maritime  or  equity  jurisdiction.  United  States  v.  Mundel,  6  Call. 
258.  The  federal  courts  are  governed  in  commercial  and  maritime  cases,  by  the 
general,  and  not  by  the  local  law.  Mutual  Safety  Ins.  Co.  v.  Cargo  of  the  Brig 
George,  Olcott,  89. 


OF   COXSTITUTION.VL  I'OWEKS  AND  LIJIITATIOXS.  355 

made  by  the  authority  of  the  people  themselves,  or  by  their  dele- 
gates specially  authorized;  and  it  can  be  changed  only  by  theUkc 
power.  The  legislature,  Avhicli  is  only  the  creature  of  the  consti- 
tution, cannot  make  any  change  in  such  fundamental  law.  a  The 
constitution  guarantees  to  every  citizen,  equal  rights,  protection 
and  participation,  direct  or  indirect,  in  the  government,  h 

A  learned  conmientator  upon  the  constitution  of  the  United 
States,  says,  "it  is  an  original,  written,  federal  and  social  compact, 
freely,  voluntarily,  and  solemnly  entered  into  by  the  several  states, 
and  ratified  by  the  people  thereof  respectively;  whereby  the 
several  states,  and  the  people  thereof  respectively  have  bound 
themselves  each  to  other,  and  to  the  federal  government  of  the 
United  States,  and  by  which  the  federal  government  is  bound  to 
the  several  states,  and  to  every  citizen  of  the  United  States."  c 
This  is  doubtless  true  of  its  character  and  its  design,  but  not  of 
the  parties  to  the  compact. 

This  vieAV  is  not  regarded  as  sound  by  the  supreme  coiu't  of  the 
United  States,  so  far  as  it  is  stated  to  be  a  compact,  entered  into 
by  the  states  in  their  political  capacity,  as  contradistinguished 
from  the  people  thereof.  The  states  never  did,  in  fact,  as  states, 
ratify  the  constitution.  They  were  not  called  upon  by  congress 
to  do  so,  and  were  not  contemplated,  as  essential  to  give  validity 
to  it.  cl  "  The  convention  which  framed  tlie  constitution  was  m- 
deed  elected  by  the  state  legislatures.  But  the  instrument  when 
it  came  from  their  hands,  was  a  mere  proposal  without  obhgation, 
or  pretensions  to  it.  It  was  reported  to  the  then  existing  congress 
of  the  United  States,  with  a  request  that  it  might  be  submitted  to 
a  convention  of  delegates,  chosen  in  each  state  by  the  people 
thereof,  mider  the  recommendation  of  its  legislature  for  then-  as- 
sent and  ratification.  This  mode  of  proceeding  was  adopted ;  and 
by  the  convention,  by  congress,  and  by  the  state  legislatures,  the 
instrument  was  submitted  to  the  people.  They  acted  upon  it  in 
the  only  manner  in  which  they  can  act  safely,  efi'ectively,  and 
wisely  on  such  a  subject,  by  assembling  a  convention.  It  is  true, 
they  assembled  in  then-  several  states— and  where  else  should  they 

a  Boiivier's  Inst.  9,  10.  h  Wbartou's  Law  Diet. 

c  Tucker's  Black  Com.,  Ap.  note  D.,  p.  140. 

d  Story  ou  Const.,  §  3G2;  McCulloch  v.  State  of  Marylaml,  -i  "Wheat.  102  to  -lOi 


356  OF  CONSTITL'TIONAL  PJ^\E^tS  AND    LIMITATIONS. 

have  assembled  ?  No  political  dreamer  was  ever  wild  enough  to 
think  of  breaking  down  the  lines  which  separate  the  states,  and  of 
compounding  the  American  people  into  one  common  mass.  Of  con- 
sequence when  the}-  act,  they  act  in  their  states.  But  the  measures 
they  adopt,  do  not  on  that  account  cease  to  be  the  measures  of  the 
people  themselves,  or  become  the  measures  of  the  state  govern- 
ments, a 

The  several  state  constitutions  are  of  like  origin,  but  of  more 
circumscribed  jurisdiction,  and  in  certain  particulars,  limited  in 
the  objects  upon  which  they  act.  They  are  also  original,  written 
and  social  compacts,  freely,  voluntarily  and  solemnly  entered  into, 
between  the  people  of  the  states  respectively,  and  the  respective 
state  governments ;  and  in  which  the  peojole  of  the  states,  and  the 
state  governments  respectively,  have  bound  themselves  to  each 
other. 

"  The  general  and  state  governments,  in  this  country,  are  a 
part  of  one  and  the  same  system,  instituted  by  one  and  the  same 
people,  having  one  and  the  same  general  duty  to  perform  for  the 
people.  Every  national  citizen  is  necessarily  connected  with  busi- 
.  ness  and  interests  of  a  domestic  character ;  and  there  is  but  one 
class  of  institutions  that  can  administer  to  his  necessities,  in  respect 
to  those  subjects.  That  branch  of  internal  administration,  is  by 
common  consent,  as  well  as  by  particular  regulation,  committed  to 
the  state  administration."  b 

The  state  governments  are  as  absolute  in  the  exercise  of  their 
authority  within  the  limits  of  then-  respective  jurisdictions,  as  is 
the  general  government  witlim  its  particular  sphere ;  and  every 
national  citizen  is  as  much  interested  in  preserving  intact,  the  state 
governments,  as  he  is  that  of  the  general  government ;  and  of  pre- 
venting encroachments  of  the  one,  upon  the  other.  The  national 
government  is  as  much  his  own,  as  the  state  government.  They 
are  both  created  in  the  same  manner,  by  the  same  authority,  and 
for  the  same  general  purpose.  They  differ  really,  only,  in  the  sub- 
jects, and  extent  of  their  jurisdiction. 

It  has  happily  thus  far,  been  the  disposition  of  both  the  national 
and  state  governments,  in  all  their  intercourse  with  each  other  ia 

a  Per  Ch.  J.Marsbiill,  4  Wheat.  402-;5. 
h  Tiffany's  Theory,  pp.  Ill,  112. 


OF  CONSTITUTIONAL  TOWERS  AXD  LIMITATIONS.  357 

the  administration  of  their  rospectivo  goveruments,  to  avoid  con- 
flicts of  authority  between  each  other  ;  to  bring  the  whole  system 
into  general  harmonious  action,  and  to  establish  and  promote  niles 
of  comity,  between  the  several  states,  and  between  the  federal 
government  and  the  several  states,  at  least  as  fully  as  they  exist 
between  foreign  states.  This  disposition  was  manifested  in  the 
United  States  court,  by  a  decided  expression  of  the  court  to  that 
effect,  a  It  has  been  supposed,  says  Ch.  J.  Tanej^,  "  that  the  ndes 
of  comity  between  foreign  nations,  do  not  ai)})ly  to  the  states  of 
this  Union ;  that  they  extend  to  one  iauitlicr  no  (jther  riglits  than 
those  that  are  given  by  the  constitution  of  the  United  States,  and 
that  the  courts  of  the  general  government  are  not  at  liberty  to 
presume,  in  the  absence  of  all  legislation  on  the  subject,  that  a 
state  has  adopted  the  comity  of  nations  towards  the  other  states 
as  a  part  of  its  jurisprudence ;  or  that  it  acknowledges  any  rights 
but  those  which  are  secured  by  the  constitution  of  the  United 
States.  The  court  think  otherwise.  The  intimate  union  of  these 
states  as  members  of  the  same  great  political  family ; — the  deep 
and  vital  interests  a\  hieh  bind  them  so  closely  together ;  should 
lead  us,  in  the  absence  of  proof  to  tlie  contrary,  to  j)resume  a 
greater  degree  of  comity,  friendship  and  kindness  towards  each 
other,  than  we  could  be  authorized  to  presume  between  foreign 
nations.  And  when,  (as  without  doubt,  must  occasionally  happen), 
the  interest  or  policy  of  any  state  requires  it  to  restrict  the  rule,  it 
has  but  to  declare  its  will,  and  the  legal  presumption  is  at  once  at 
an  end.  But  until  this  is  done,  upon  what  grounds  could  this 
court  refuse  to  administer  the  law  of  international  comity  between 
these  states  ?  They  are  sovereign  states ;  and  the  history  of  the 
past,  and  the  events  which  are  daily  occuiTuig,  fm-nish  the  strongest 
evidence  that  they  have  adopted  towards  each  other  the  laws  of 
comity  in  their  fullest  extent." 

The  foundation  for  a  stUl  stronger  recognition  of  this  comity,  is 
laid  in  the  federal  constitution  itself.  It  contains  a  provision  in 
regard  to  the  laws  of  the  states,  and  the  proceedings  of  the  judicial 
tribunals,  which,  though  it  gives  them  no  extra  territorial  effect, 
has  still  a  strong  bearing  upon  the  question  of  comity.  Article 
IV,  §1,  declares,  that,  "Full  faith  and  credit  shall  be  given  in 

a  Bank  of  Au-nista  v.  Earle,  13  Peters,  590. 


358  or  CONSTITUTIONAL   rOTN'EES  AND   LIMITATIONS. 

each  state  to  the  pubhc  acts,  records  and  judicial  proceedings  ol 
every  other  state ;  and  that  congress  may,  by  general  laws,  pre- 
scribe the  manner  by  which  such  acts,  records  and  proceedings, 
shall  be  proved,  and  the  effect  thereof." 

In  pursuance  of  this  power,  the  congress  of  the  United  States 
by  an  act  of  May  26,  1790,  Ch.  38,  provided  the  mode  by  which 
records,  and  judicial  proceedings  should  be  authenticated.  Under 
these  constitutional  and  statutory  provisions,  various  decisions 
have  been  made,  the  general  result  of  which  is,  that  a  judgment 
is  conclusive  in  every  other  state,  if  a  court  of  the  particular  state 
had  jurisdiction,  and  would  so  hold  it.  a  "  But  congress  has  never 
acted  on  the  power  in  the  constitution  as  to  the  public  acts  or  laws 
of  the  states,  any  further  than  to  declare  that  they  shall  be  authen- 
ticated by  having  the  seal  of  the  respective  states  affixed  thereto ; 
nor  is  this  method  regarded  as  exclusive  of  any  other  which  the 
states  may  adopt.  And  the  states  have  differed  as  to  the  manner 
in  which  they  shall  be  proved.  In  some  cases,  strict  proof  of 
them,  as  foreign  laws,  has  been  required ;  but  the  courts  of  other 
states,  and  the  supreme  court  of  the  United  States,  influenced  by 
the  intimate  and  peculiar  connection  of  the  states,  have  shown  a 
disposition  to  relax  the  usual  iiiles  of  proof  in  this  respect."  h 
The  authorities  will  be  found  in  the  note.  '^ 

a  Mills  V.   Duryea,   7  Cranch.  481;   Hampton  v.   McConnell,  3  Wheat.  234,  1 
Kent's  Com.  260. 
h  Sedgwick  on  Const.  78. 

Note  9. — No  other  authentication  of  an  act  of  the  legislature  is  required,  except 
the  annexation  of  the  seal  of  the  state;  it  is  presumed  that  the  person  who  alfixed 
the  seal  had  competent  authority  to  do  so.  United  States  v.  Amedy,  11  Wh.  392; 
United  States  v.  Johns,  4  Dall.  41G;  S.  C.  1  W.  C.  C.3G3.  A  printed  pamphlet 
containing  the  laws  of  another  state,  is  not  admissible  in  evidence.  Craig  v. 
Brown,  Pet.  C.  C.  352.  In  the  courts  of  the  District  of  Columbia,  however,  the 
statute  book  of  one  of  the  states,  purporting  to  be  published  by  authority  of  its 
legislature,  and  deposited  in  the  department  of  state,  under  the  act  of  congress 
requiring  the  secretary  of  state  to  obtain  copies  of  the  laws  of  the  several  states, 
is  admissible  evidence  of  the  laws  of  such  state.  Commercial  and  Farmers'  Bank 
of  Baltimore  v.  Patterson,  2  Cr.  C.  C.  34G  ;  see  Leeland  v.  Wilkinson,  6  Pet.  317. 
In  the  supreme  court,  the  states  of  the  confederacy  are  not  regarded  as  foreign 
states  whose  laws  and  usages  must  be  proved,  but  as  domestic  institutions,  whose 
laws  are  to  be  noticed  without  pleading  or  j^roof  ;  and  the  state  courts,  in  deter- 
mining questions  subject  to  be  reviewed  in  the  supreme  court  of  the  United 
States,  adopt  the  same  rule,  and  will  take  notice  of  the  local  laws  of  a  sister  stat« 


OF  CONSTITUTIONAL  POWEIiS  AND  LBIITATIONS.  359 

A  valuable  note  of  authorities  upon  pleadicg  upon  foreign  judg- 
ments, and  as  to  the  distinctions  between  cases  where  jurisdiction 
may  be  enquired  into,  and  otherwise,  will  be  found  on  pages  200 
and  2G1,  1  Kent  Com. 

in  the  same  iiuiuuor  that  the  supreme  court  would  do  on  a  writ  of  error  to  their 
judgment.  Baxley  v.  Linah,  4  Harris,  213,  250;  Ohio  v.  Iliuchmau,  3  Casey,  -170; 
Eogers  v.  Burns,  Id.  52G. 

The  judicial  proceedings  here  referred  to,  are  genorully  understood  to  be  the 
proceedings  of  courts  of  general  jurisdiction,  and  not  those  which  are  merely  of 
municipal  authority.  1  Greenl.  Ev.  §  505.  And  accordinglj',  it  has  been  held, 
that  the  judgments  of  justices  of  the  peace,  were  not  within  the  meaning  of  these 
constitutional  and  statutory  lU'ovisions.  Snyder  v.  Wise,  10  Barr.  157;  "Warren 
V.  Flagg,  2  rick.  448  ;  Hobinson  v.  Prescott,  4  N.  Ilamp.  450  ;  Mahurin  v.  Bick- 
ford,  G  Id.  1G7;  Silver  Lake  Bank  v.  Harding,  5  Ohio,  545;  Thomas  v.  Robinson, 
3  Wend.  2G7.  In  Connecticut  and  Vermont,  however,  it  is  held,  that  if  the  jus- 
tice is  bound  by  law  to  keei)  a  record  of  his  proceedings,  they  are  within  the 
meaning  of  the  act  of  congress.  Bissell  v.  Edwards,  5  Day,  3G3;  Starkweather  v. 
Loomis,  2  Verm.  573  ;  Blodget  v.  Jordan,  G  Id.  580  ;  and  see  Scott  v.  Cleveland, 
3  Monr.  62.  But  the  proceedings  of  courts  of  chancery,  and  of  probate,  as  well 
as  of  the  courts  of  common  law,  may  be  thus  proved.  Scott  v.  Blanchard,  8  Mar- 
tin, (N  S)  303;  Balfour  v.  Chew,  5  Id.  517;  Johnson  v.  KanneLs,  G  Id.  G21;  Eipple 
v.  Ripple,  1  Eawle,  381;  Craig  v.  Brown,  Pet.  C.  C.  352;  Hunt  v.  Lyle,  8  Yerg.  142; 
Barbour  v.  Watts,  2  A.  K.  Marsh,  290,  293.  This  clause  is  not  restricted  to  the 
case  of  judgments.     Hopkins  v.  Ludlow,  Phila.  R.  272. 

This  does  not  apply  to  the  records  of  the  courts  of  the  United  States.  Mason's 
Administrators  v.  Lawrason,  1  Cr.  C.  C.  190.  But  though,  in  terms,  it  applies 
only  to  the  state  courts,  the  rule  is  ecpially  ajiplicable  to  those  of  the  United 
States.  Tooker  v.  Thompson,  3  McLean,  94.  And  a  judgment  of  a  court  of  the 
United  States  is  admissible,  when  authenticated  in  the  manner  provided  in  this 
act.     Buford  v.  Hickman,  Hemp.  232. 

It  seems  to  be  generally  agreed,  that  this  method  of  authentication  is  not  exclu- 
sive of  any  other  which  the  states  may  think  proper  to  adopt.  Kean  v.  Rice,  12 
S.  &  R.  203,  208;  The  State  v.  Stade,  1  D.  Chipm.  303  ;  Raynham  v.  Canton,  3 
Pick.  293;  Biddis  v.  James,  6  Binn.  321;  Ex  parte  Povall,  3  Leigh.  81G;  Pepoon 
V.  Jenkins,  2  Johns.  Cas,  129  ;  Ellmore  v.  IVJills,  1  Hayw.  359  ;  Baker  v.  Field,  2 
Yeates,  532;  Ohio  v.  Hinchman,  3  Casey,  485. 

The  clerk  who  certifies  the  record  must  be  the  clerk  of  the  same  court,  or  of  its 
successor ;  the  certificate  of  his  under-clerk,  in  his  absence,  or  of  the  clerk  of  any 
other  tribunal,  office,  or  body,  being  held  incompetent  for  this  purpose.  Samp- 
son V.  Overton,  4  Bibb.  409;  Lothrop  v.  Blake,  3  Barr.  495;  Donohoo  v.  Brannon, 
1  Overt.  328;  Schnertzell  v.  Young,  3  H.  and  McHen,  502.  A  surrogate  acts  as 
a  clerk  in  certifying  his  proceedings,  and  as  he  also  acts  in  the  capacity  of  judge, 
he  must  certify  as  to  the  authentication.  Catlin  v.  Undcrhill,  4  McLean,  199; 
Ohio  V.  Hinchman,  3  Casey,  484. 

Whenever  the  court  whose  record  is  certified  has  no  seal,  this  fact  should  ap- 
pear, either  in  the  certificate  of  the  clerk,  or  in  that  of  the  judj,'p.     Craig  v.  Brown, 


360  OF   COXSTITL'TIONAL  POWEIIS  AND   LIMITATIOKS. 

The  dii'ect  result,  or  consequence  of  such  an  exercise  of  power 
bj  the  states,  is,  that  the  laws  of  each  state  bind,  directly,  all 

Pet.  C.  C.  353.  The  seal  of  the  court  must  be  annexed  to  the  record  itself ;  it  is 
not  euough  that  it  is  annexed  to  the  judge's  certiticate.  Turner  v.  Washington, 
3  AV.  C.  C.  120, 

The  certificate  must  be  given  by  the  judge,  if  there  be  but  one;  or  if  there  be 
more  than  one,  then  by  the  chief  justice,  or  presiding  judge  or  magistrate  of  the 
court  from  whence  the  record  comes  ;  and  he  must  possess  that  character  at  the  " 
time  he  gives  the  certificate.  A  certificate  that  he  is  the  judge  that  presided  at 
the  time  of  trial,  or  that  he  is  the  senior  judge  of  the  courts  of  law  in  the  state,  is 
deemed  insufficient.  Lothrop  v.  Blake,  3  Barr.  495  ;  Stephenson  v.  Bannister,  3 
Bibb.  3C9;  Kirkland  v.  Smith,  2  Martin  (N  S)  497.  And  so  is  the  certificate  of  a 
judge  styling  himself  "  one  of  the  judges"  of  the  court.  Stewart  v.  Graj',  Hemp. 
94;  See  Catlin  v.  Underbill,  4  McLean,  199;  Erb  v.  Scott,  2  Harris,  22. 

A  record  of  another  state  is  not  admissible,  if  the  certificate  of  the  presiding 
magistrate  omit  to  state,  that  the  attestation  of  the  clerk  is  in  due  form.  Trigg 
V.  Conway,  Hemp.  538'.  The  phrase  "  due  form,"  means  the  form  of  attestation 
used  in  the  state  from  whence  the  record  comes.  Craig  v.  Brown,  Pet.  -C.  C.  354. 
And  the  certificate  of  the  presiding  judge  being  the  evidence  prescribed  by  law, 
,  that  this  form  has  been  observed,  is  at  once  indispensable  and  conclusive.  Fer- 
guson V.  Harwood,  7  Cr.  408  ;  Tooker  v.  Thompson,  3  McLean,  93  ;  Taylor  v. 
Carpenter,  2  W.  &  M.  4.  A  certificate  that  the  person  whose  name  is  signed  to 
the  attestation  is  clerk  of  the  court,  and  that  the  signature  is  his  own  handwriting, 
is  not  in  conformity  with  the  jirovisions  of  the  act.  Craig  v.  Brown,  Pet.  C.  C. 
352.  Where,  however,  the  record  of  a  judgment  of  a  state  court  is  ofi"ered  in  evi- 
dence, in  the  circuit  court,  sitting  within  the  same  state,  the  certificate  ot  the 
clerk  and  seal  of  the  court  is  a  sufficient  authentication.  Mewster  v.  Spalding,  6 
McLean,  24. 

A  judgment  ofa  state  court  has  the  same  credit,  validity,  and  efi'ect,  in  every 
other  court  within  the  United  States,  which  it  had  in  the  state  where  it  was  ren- 
dered; and  whatever  pleas  would  be  good  in  a  suit  thereon,  in  such  state,  and 
none  others,  can  be  pleaded  in  any  other  court  within  the  United  Slates.  Hamp- 
ton V.  McConnel,  3  Wh.  234  ;  Mills  v.  Duryee,  7  Cr.  481  ;  Westerwelt  v.  Lewis,  2 
McLean,  511;  Taylor  v.  Carpenter,  2  W.  &  M.  4;  Warren  Manufacturing  Co.  v. 
Etna  Insurance  Co.,  2  Paine  502;  Whitaker  v.  Bramson,  Ibid.  209;  Green  v. 
Sarmiento,  Pet.  C.  C.  74,  s.  c,  3  W.  C.  C.  17;  Bryant  v.  Hunters,  Ibid.  48 ;  Field 
V.  Gibbs,  Pet.  C.  C.  157;  Armstrong  v.  Carson's  Executors,  2  Ball.  302;  2  Am. 
Leading  Cases,  774.  But  although  this  act  makes  a  judgment  regularly  recovered 
in  another  state,  and  duly  authenticated,  conclusive  evidence  of  an  established 
demand,  as  of  the  date  of  such  judgment,  it  does  not  prevent  the  several  states 
from  enacting  statutes  of  limitation,  barring  actions  on  such  judgments  iu  their 
courts.  Bank  of  the  State  of  Alabama  v.  Dalton,  9  How.  522;  McElmoyle  v. 
Cohen,  13  Pet.  312.  Nor  does  it  apply  to  a  judgment  recovered  against  a  non- 
resident joint  debtor,  without  notice  to  him  ;  such  a  judgment  is  not  entitled  to 
any  faith  or  credit  out  of  the  state  iu  which  it  was  rendered.  D'Arcy  v.  Ketchum, ' 
11  How.  1G5;  Eogers  v.  Burns,  3  Casey,  525. 


or   CONSTITUTIONAL  TOWERS  AND  LIMITATIONS.  3G1 

property,  ■vvLotlier  real  or  pers-onul,  witliiu  its  territoiy ;  and  all 
persons  who  are  resident  within  it,  whether  natural  bom  subjects 
or  ahens,  and  also  all  contracts  made  and  acts  done  within  it. 

A  state  ma}',  therefore,  by  statute,  regidate  the  manner  and  cir- 
cumstances under  which  property,  whether  real  or  personal,  or  in 
action,  within  it,  .shall  be  held  transmitted,  bequeathed,  transferred 
or  enforced  ;  the  condition,  capacity  and  state  of  all  persons  within 
it;  the  validity  of  contracts,  and  other  acts  done  within  it,  the  re- 
sulting rights  and  duties  growing  out  of  these  contracts  and  acts, 
and  the  remedies  and  modes  of  administering  justice  in  all  cases 
calling  for  the  interposition  of  its  tribunals  to  protect,  to  vindicate, 
and  to  secure  the  wholesome  agency  of  its  own  laws  within  its  own 
domain,  a 

It  is  equally  a  necessary  result  of  the  independence,  and  distinct 
sovereignties  of  the  several  .states,  that  neither  their  statutes,  or 
other  laws,  have  any  inherent  authority,  nor  are  they  entitled  to 
any  respect  extra  territorially,  or  beyond  the  jurisdiction  that 
enacts  them.  But  by  a  kind  of  courtesy  or  comity  between  states 
and  nations,  the  principle  is  now  generally  received  and  adopted, 
that  contracts  are  to  be  construed  and  inteipreted  according  to 
the  laws  of  the  state  in  which  they  are  made,  unless  from  their 
tenor  it  is  perceived,  that  they  were  entered  into  with  a  view  to  the 
laws  of  some  other  state,  h 

The  gi'and  boundary  line  which  marks  the  obvious  hmits  be- 
tween the  federal  and  state  juiisdictions,  is,  that  to  the  former  is 
given  jurisdiction  in  all  matters  arising  under  the  political  laws  of 
the  nation ;  and  such  as  relate  to  its  general  concerns  with  foreign 
nations,  or  to  the  several  states  as  members  of  the  federal  govern- 
ment. To  the  latter,  is  given  jurisdiction  of  all  matters  of  a  civil 
nature  between  their  citizens,  or  between  their  citizens  and  other 
persons,  or  such  as  properly  belong  to  the  head  of  municipal  law, 
(with  certain  exceptions,  to  which  we  have  before  refeiTed,)  where, 
by  special  provision,  contained  in  the  federal  constitution,  either 
concuiTent  or  exclusive  jurisdiction  is  gi'anted  to  the  general  gov- 
ernment— and  excepting  also,  all  powers  contained  in  the  federal 
constitution  w'hich  are  expressly  prohibited  to  the  states,  or  which 

ft  Story's  Conflict  of  Laws,  §  18. 
Blauchard  v.  Enssell,  18 Mass.  E.  4;  Bank  of  Augnsta  v.  Earll,  13  Peters  589 
46 


3G2  OF  CONSTITUTIONAL  POWERS  AND  LIMITATIONS. 

can  be  exercised  hj  them  only  with  the  consent,  or  imder  the  con- 
trol of  congi'ess ;  and  powers  which  are  prohibited  to  both  the 
federal  and  state  governments. 

From  these  views  it  will  be  seen,  and  it  logically  and  neces- 
sarily follows,  that  all  other  powers  of  government,  compatible 
with  the  nature  and  principle  of  democratic  governments,  which 
are  not  prohibited  by  the  bill  of  rights,  or  constitutions  of  the  re- 
spective states,  remain  with  such  states  or  with  the  people  thereof, 
and  may  be  exercised  by  them,  respectively  in  such  manner,  as 
their  several  laws  and  constitutions  may  permit  or  direct. 

Subject  to  the  limitations  contained  in  the  federal  and  state  con- 
stitutions, the  legislative  power  in  the  state  of  New  York,  (and  it 
is  believed  to  be  the  same  in  every  other  independent  state),  is  not 
restricted  in  its  power  to  enact  laws,  any  more  than  is  the  British 
parUament.  a  In  this  respect  the  legislature  is  the  direct  repre- 
sentative of  the  people,  and  the  depository  of  their  power. 

Statutes,  or  laws,  under  such  a  form  of  government,  must  there- 
fore be  made  in  conformity  with  the  requirements  of  written  con- 
stitutions. If  the  forms  prescribed  by  the  constitution  have  hot 
been  observed,  or  the  power  has  not  been  delegated  to  the  legis- 
lative body,  the  act  is  unconstitutional  and  void. 

A  constitutional  law,  is  one  made  by  the  legislative  power  prop- 
erly organized  according  to  the  requirements  of  the  constitution. 
Such  a  statute,  is  binding  upon  aU  the  peoj^le,  citizens  and  others, 
who  are  within  the  territorial  jurisdiction  of  the  legislature,  h  and 
it  is  the  duty  of  the  executive  department  to  see  that  such  a  law 
is  faithfully  executed. 

An  unconstitutional  law,  (it'  such  can  be  called  law,)  is  one  made 
in  contravention  of  the  powers  of  the  constitution,  and  for  that 
reason  it  is  absolutely  void,  because  the  constitution,  which  is  the 
supreme  and  fundamental  law  of  the  land  ;  —  having  greater  force 
than  any  statute,  c  such  a  law,  the  executive  is  not  bound  to  see 
enforced. 

The  courts  possess  the  poAver,  and  it  is  tlieb  duty  when  a  law  is 

a  People  V.  Morrell,  21  Wend.  563;  Butler  v.  Palmer,  1  Hill.  324;  Bloodgood 
V.  Mohawk  &  Hudson  R.  E.  Co.,  18  Wend.  9 ;  Sill  v.  Village  of  Corning,  15  N.  Y- 
R.  300;  People  V.  Draper,  id.  549. 

c  1  Bowv.  In.st.  47.  d  Id. 


OF   CONSTITUTIONAL  POWERS   AND   LIMITATIONS.  363 

unconstitutioiiul,  to  dechiiu  it  to  be  8o.  They  "will  however  be 
careful  not  so  to  declare  it,  except  the  case  be  very  clear.  The 
determination  of  this  question,  is  always  a  question  of  power,  that  is, 
whether  the  legislature  in  the  particular  case,  in  respect  to  the 
subject  matter  of  the  act ;  the  manner  in  which  its  object  is  to  be 
accomplished,  and  the  mode  of  enacting  it ;  has  kept  within  the 
constitutional  limits ;  and  whether  the  law-makers  have  obsers'cd 
the  constitutional  conditions,  a  If  these  conditions  and  limita- 
tions have  been  observed  by  the  law-niakmg  power,  the  courts  will 
not  enquire  further;  they  will  assiimethat  the  legislative  discretion 
has  been  properly  exercised.  If  the  power  to  pass  the  law  should 
depend  upon  extrinsic  facts,  the  coui't  will  presume  that  such  facts 
were  before  the  legislature  mIicu  the  act  was  passed ;  nor  will  the 
courts  ever  enquire  into  the  motives  of  the  legislature  where  fraud 
and  corruption  are  charged,  and  annul  their  action,  or  the  statute, 
if  the  charge  be  jjroved  true.  // 

In  analogy  to  the  system  of  Crreat  Britain,  and  Avith  the  views 
of  the  omnipotent  power  of  the  English  parliament,  it  was  at  an 
early  day  claimed  by  man}-,  unfamiliar  with  the  American  theory 
of  government ;  of  written  constitutions ;  and  of  a  tlistribution  of 
the  sovereign  poAver  into  departments  ;  that  the  judicial  depart- 
ment possessed  no  power  to  declare  a  statute  void,  even  though  its 
enactment  was  in  conflict  with  express  inhibitions  of  power  con- 
tained in  constitutions.  These  views  were  set  at  rest  by  the  judi- 
cial power  upon  the  earliest  occasion. 

Cliief  Justice  Marshall,  in  giving  liis  views  on  this  subject,  has 
done  it  so  clearly,  and  so  tersely,  that  to  transcribe  them, 
gives  much  better  expression  to  the  same  ideas  than  we  could  give 
in  our  own  language ;  Ave  therefore  copy  them  (with  slight  changes,) 
and  adopt  them,  c  He  says,  "  The  question,  whether  an  act  re- 
pugnant to  written  constitutions  can  become  the  law  of  the  land, 
is  a  question  deeply  interesting  to  the  people  of  the  United 
States ;  but,  happily,  not  of  an  intricacy  proportioned  to  its  in- 
terest. It  seems  necessary  only  to  recognize  certain  principles, 
supposed  to  have  been  long  and  well  established,  to  decide  it." 

That  the  people  had  an  original  right  to  establish,  for  theii 

a  Coolej-  V.  Const.  Lim.  18G,  7.  b  People  v.  Draper,  15  New  York,  E.  olo. 

c  Marbury  v.  Madison  1,  Cranch.  68,  70. 


oG-i  or   CONSTIITTIONAL  rO"\M:RS  AND  LIMITATIONS. 

hiture  govemmeut,  such  principles,  as,  in  tlieir  opinion,  should 
most  conduce  to  their  own  happiness,  is  the  basis  upon  "which  the 
whole  American  fabric  has  been  erected.  The  exercise  of  this 
original  right  is  a  very  gi'eat  exertion ;  nor  can  it,  nor  ought  it  to 
be  fi'equently  repeated.  The  principles,  therefore  so  established, 
are  deemed  fundamental.  And  as  the  authority  from  which  they 
proceed  is  suiiremo,  and  can  seldom  act,  .tliey  are  designed  to  be 
permanent. 

This  original  and  supreme  will  organizes  the  government,  and 
assigns  to  different  departments,  their  respective  powers.  It  may 
either  stop  here  ;  or  establish  certain  hmits  not  to  be  transcended 
by  those  departments. 

The  government  of  the  United  States,  (and  the  government  of 
the  several  states,)  is  of  the  latter  description.  The  powers  of 
the  legislatures  are  defined  and  limited,  and  that  those  limits  may 
not  be  mistaken  or  forgotten,  the  constitutions  are  written.  To 
what  purpose  are  powers  limited;  and  to  what  purpose  is  that 
limitation  committed  to  lo riling  ;  if  these  limits  may,  at  any  time, 
be  passed  by  those  intended  to  be  restrained  ?  The  distinction 
between  a  government  with  limited  and  unlimited  powers  is  abol- 
ished, if  those  limits  do  not  confine  the  persons  on  whom  they  arc 
composed,  and,  if  acts  prohibited,  and  acts  allowed,  are  of  equal 
obUgation.  It  is  a  proposition  too  plain  to  be  contested,  that  the 
constitution  controls  any  legislative  act  repugnant  to  it ;  or,  that 
the  legislature  may  alter  the  constitution  by  an  ordinary  act. 

Between  these  alternatives  there  is  no  middle  ground.  The 
constitution  is  either  a  superior,  paramount  law,  unchangeable  by 
ordinary  means,  or  it  is  on  a  level  with  ordinary  acts,  and  is  alter- 
able when  the  legislature  shall  please  to  alter  it.  If  the  former 
part  of  the  alternative  be  true,  then  a  legislative  act  contraiy  to 
the  constitution  is  not  law  ;  if  the  latter  part  be  true,  then  written 
constitutions  are  absurd  attempts,  on  the  part  of  the  people,  to 
limit  a  power  in  its  own  nature  illimitable. 

Certainly,  all  those  W'ho  have  framed  written  constitutions,  con- 
template them  as  forming  the  fundamental  and  paramount  law  of 
the  (state,)  and  consequently,  the  theory  of  every  such  government 
must  be,  that  an  act  of  the  legislature  repugnant  to  the  constitu- 
tion is  void.     This  theory  is  essentially  attached  to  a  written  con- 


OF  CONSTITUTIONAL  TOWERS  AND  LIMITATIONS.  306 

stihition,  find  is  consequently  to  be  considered  by  courts  as  one  of 
the  fundamental  principles  of  our  society.  It  is  not  therefore  to 
be  lost  sight  of,  in  the  further  consideration  of  the  subject. 

If  an  act  of  the  legislature,  repugnant  to  the  constitution,  is 
void,  does  it  notwithstanding  its  invalidity,  bind  the  courts,  and 
oblige  them  to  give  it  eft'ect '?  or,  in  other  words,  though  it  be  not 
law,  does  it  constitute  a  rale  as  operative  as  if  it  was  a  laAv  '?  This 
Avould  be  to  overthrow  in  fact,  what  was  estabhshed  in  theory  ; 
and  it  would  seem,  at  lirst  view,  an  absurdity,  too  gross  to  be  in- 
sisted on.     It  shall  however,  receive  a  more  attentive;  consideration. 

It  is  emphaticaUu  (he  didi/  and  province  of  t lie  j mUclal  depart incnl 
to  say  what  the  laio  is.  Those  who  apply  the  rule  to  particular 
cases,  must  of  necessity  expound  and  interpret  that  rule.  If  two 
laws  conflict  with  each  other,  the  courts  must  decide  on  the  opera- 
tion of  each.  So  if  a  law  be  in  opposition  to  the  constitution ; 
if  both  be  the  laAv,  and  the  constitution  apply  to  a  particular  case, 
so  that  the  com't  must  cither  decide  that  case,  conformably  to  the 
law,  disregarding  the  constitution,  or  conformably  to  the  constitu- 
tion, disregarding  the  law ;  the  court  must  determine  which  of 
these  conflicting  rules  governs  the  case.  This  is  the  very  essence 
of  judicial  duty. 

If  then  the  courts  are  to  regard  the  constitution  ;  and  the  con- 
stitution is  superior  to  any  ordinary  act  of  the  legislature ;  the 
constitution,  and  not  such  ordinary  act,  must  govern  the  case  to 
which  they  both  apply.  Those  who  controvert  the  principle  that 
the  constitution  is  to  be  considered,  in  court,  as  a  paramount  law, 
are  reduced  to  the  necessity  of  maintaining  that  courts  must  close 
their  eyes  on  the  constitution,  and  see  only  the  law. 

This  doctrine  would  subvert  the  very  foundation  of  all  AM-itten 
constitutions.  It  would  declare  that  an  act,  wliich  according  to  the 
principles  and  theory  of  our  government,  is  entirely  void,  is  yet, 
in  practice,  completely  obligatory.  It  would  declare,  that  if  the 
legislature  shall  do  what  is  expressly  forbidden,  suoh  act,  notwith- 
standing the  express  prohibition,  is  in  reality  effectual.  It  would 
be  giving  to  the  legislature,  a  jiractical  and  real  omnipotence,  with 
the  same  breath  which  professes  to  restrict  their  powers  witlim 
narrow  hmits.  It  is  prescribing  limits,  and  declaring  that  those 
hmits  may  bo  passed  at  pleasure  ;  that  it  thus   reduces  to  noth- 


366  OF  CONSTITUTIONAL  POWEKS  AND   LIMITATIONS. 

iiig,  Avliat  we  have  deemed  the  greatest  improvement  on  political 
institutions, — a  written  constitution,  -would,  of  itself,  be  sufficient 
in  America,  where  written  constitutions  have  been  viewed  with  so 
much  reverence,  for  rejecting  the  construction. 

It  has  been  regarded  as  curious,  that  in  the  absence  of  any  ex- 
press provision  in  the  constitutions,  or  the  statutes  of  the  nation 
or  states,  that  the  judiciary  should  have  assumed  to  exercise  this 
extraordinary  power,  of  checking  the  legislature  in  the  exercise  of 
theii-  powers,  to  the  extent  of  declaring  statutes  to  be  null  and  void 
when  passed  m  violation  of  constitutional  restrictions.  But  this 
has  ever  been  regarded  as  an  mherent  power  in  the  judicial  de- 
partment ;  a  power  that  they  have  steadily,  and  sometimes  vigor- 
•  ously  exercised  from  the  earhest  days  of  the  republics  ;  and  the 
exercise  of  the  power,  if  not  always  conceded,  has  been  universally 
acquiesed  in  as  an  admitted  right.  Tlie  judicial  power  of  the  gov- 
ernment is  confen-ed  upon  the  courts.  This  includes  all  judicial 
power,  and  includes  by  implication,  the  power  in  question.  By 
virtue  of  this  power,  the  courts  decide  in  all  cases  brought  before 
them,  what  the  true  construction  of  a  doubtful  constitutional  pro- 
vision is,  and  when  legislative  acts  are  brought  before  them,  they 
decide  whether  its  provisions,  or  any  of  them,  are  infractions  of  the 
constitution.  If  their  decision  is,  that  the  act  is  unconstitutionaL 
it  destroys  its  vitahty,  and  puts  an  end  to  all  proceedings  under  it. 

The  importance  of  this  feature  in  our  system,  and  its  bearing  on 
the  character  of  the  judicial  department,  is  at  once  apparent.  It 
limits  the  power  of  the  legislature ;  it  erects  the  judiciary  at  once, 
as  was  intended,  into  a  co-ordinate  department,  and  political  au- 
thority in  the  government ;  it  practically  associates  them  with  the 
law-making  branch ;  it  has  had  a  very  marked  eftect  upon  the 
character  of  the  legal  mind,  and  education  of  the  country  ;  and  it 
has  established  in  itseK  a  degree  of  confidence  and  respect,  to 
which  the  citizen  looks  as  his  best  secm'ity.  It  has  elevated  the 
bar,  by  stimulatijag  them  to  the  highest  professional  efforts ;  and 
to  persevering  study  and  research  ;  it  has  made  judges  themselves 
ambitious  to  master  and  declare  the  great  principles  of  the  gov- 
ernment, and  of  American  jurisprudence ;  and  it  has  given  a  depth 
and  breadth,  and  dignity,  to  discussions  upon  great  legal  and  con- 
stitutional questions. 


OF  CONSTITUTION.VL  POWERS   AND   LIMITATIONS.  3G7 

"  The  undisputed  powers  of  the  judiciaiy,  are  very  gi'eat.  Thej 
not  only  expound  statutes,  and  mold  and  modify  theu'  own  judg- 
ments, but  they  declare  what  is  meant  by  the  comity  of  nations, 
and  apply  the  laws  of  foreign  countries.  The  daily  habits  of  busi- 
ness are  under  their  control;  new  customs  every  day  arising, 
stand  or  fall  by  their  decisions  ;  and  under  the  cover  of  the  right 
to  enforce  public  policy,  and  protect  good  morals,  they  excite  a 
large  and  undefined  authority  over  private  conduct.  To  all  this  is 
added  in  America,  the  undisputed  right  to  declare  constitutional, 
law,  and  thus,  in  certain  cases,  to  override  the  express  will  of  the 
legislatiu'e  itself.  These  functions,  arc  ample  enough  to  gratify 
the  most  eager  love  of  power ;  and  to  demand  the  exercise  of  the 
noblest  intellect,  and  the  apphcation  of  the  most  vigorous  indus- 
try." a 

When  a  statute  is  adjudged  to  be  unconstitutional,  it  is  as  if  it 
had  never  been.  Rights  cannot  be  built  up  under  it ;  contracts 
which  depend  upon  it  for  theu'  consideration  are  void ;  it  consti- 
tutes a  protection  to  no  one  who  has  acted  under  it,  and  no  one 
can  be  punished  for  having  refused  obedience  to  it  before  the  de- 
cision was  made.  And  what  is  true  of  an  act  void  in  tofo,  is  true 
also  of  any  part  of  an  act  "which  is  found  to  be  unconstitutional, 
and  which  consequently,  is  to  be  regarded  as  having  never,  at  any 
time,  possessed  any  legal  force,  h  So  that  nothing  is  law  simply 
and  solely  because  the  legislature  have  declared  it  to  be  so,  unless 
they  have  expressed  their  determination  to  that  effect,  by  the 
mode  pointed  out  by  the  instrument  which  invests  them  with  the 
power,  and  imdcr  all  the  forms,  which  that  instrument  has  ren- 
dered essential. 

But  in  giving  judicial  construction  to  statutes,  the  courts  ever 
keep  in  mind  the  marked  distinction  that  exists  between  statutes 
of  the  congress  of  the  United  States  under  the  national  constitu- 
tion, and  the  statutes  passed  under  the  constitutions  of  the  severed 
states.  The  government  of  the  United  States,  is  one  of  enumerated 
powers  ;  all  its  powers  are  specified ; — they  arc  either  expressed 
in  the  constitution  itself,  or  are  necessarily  to  be  implied  fi-om  the 
powers  that  are  expressly  conferred.     And  when  these  powers  are 

0  Sedgwick  on  Const.  Law  210. 
b  Cooley  on  Const.  Lim.  188. 


368  OF  CONSTITUTION AJL  POWERS  AND  LIMITATIONS. 

questioned,  the  only  duty  of  tlie  courts,  is,  to  see  whether  the 
grant  of  specified  power  is  broad  enough  to  embrace  the  act.  But 
statutes  passed  by  state  legislatures,  under  state  constitutions, 
the  courts  will  presume  to  be  valid,  for  the  reason  that  state  legis- 
latui-es  have  jurisdiction  of  all  subjects  on  which  its  legislation  is 
not  2))-oJiibi(cd  by  their  own  constitutions,  or  limited  by  the  consti- 
tution of  the  United  States,  a 

The  rule  of  interpretation  by  which  the  two  constitutions  are  dis- 
tinguished, is  just  this;  the  constitution  of  the  United  States  must 
have  a  strict  construction  ;  state  constitutions  a  liberal  one.  h  All 
powers  not  granted  to  the  Union  are  Avithlield,  while  the  states, 
retain  ever}'  attribute  of  sovereignty  which  is  not  taken  away.  By 
the  constitution  of  the  state  of  New  York,  "the  legislative  power  of 
the  state,  is  vested  in  the  Senate  and  Assembly.  This  means  of 
course,  ilie  icJioIe  legislative  power,"  c  because  the  words  are  gen- 
eral and  unhmited.  The  peoj^le  have  thus  parted  with  all  the 
power  of  legislation,  (which  was  originally  in  them,)  except  such 
as  is  prohibited.  Where,  therefore,  the  constitution  is  silent,  and 
the  legislature  are  guilty  of  no  usurpation  of  power  distributed  to 
the  other  departments  of  the  government,  their  power,  humanly 
speaking,  is  omnipotent. 

It  is  not  therefore  for  courts  to  define,  or  set  limits  to  the 
legislative  power,  nor  can  they  hold  a  law  to  be  void,  which  is  not 
prohibited  by  the  constitution  because  in  tlieh  opinion,  it  violates 
the  spirit  of  our  institutions,  or  impairs  any  of  those  rights,  which 
it  is  the  object  of  a  free  government  to  protect ;  nor  can  they  de- 
clare it  to  be  unconstitutional,  because  it  is  morally  wrong  and 
unjust.  The  constitution  itself  contains  all  the  inhibitions  that 
exist,  against  legislative  action.  If  the  courts  can  add  to  these,  they 
alter  this  fundamental  instrument,  which  they  are  not  authorized  to 
do,  and  themselves  become  aggressors,  and  violate  both  letter  and 
spirit  of  that  organic  law,  as  grossly  as  the  legislature  could,  d    If 

a  Sill  V.  Village  of  Corning,  15  N.  Y.  E.  303;  People  v.  Supervisors  of  Orange, 
27  Barb.  593,  2  Park.  Cr.  E.  490;  People  v.  N.  Y.  Cent.  E.  Co.,  24  N.  Y.  497,  504; 
Commonwealth  v.  Hartman,  17  Peun.  St.  E.  119;  Kirby  v.  Shaw,  19  id.  260; 
Wiesler  v.  Hade,  52  id.  477. 

h  Commonwealth  v.  Hartman,  5  Harris,  119. 

c  People  V.  Toynbee,  2  Park.  Cr.  E.  510. 

d  Sharpless  v.  Mayor  of  Philadelphia,  9  Harris  IGl. 


OF  CONSTITUTIONAL  rOWEPtS  AND  LIMITATIONS.  3G9 

the  courts  can  add  to  the  things  that  are  inhibited,  they  can  also 
take  away.  If  they  can  change  at  all,  they  can  destroy  entirely. 
They  cannot  supply  what  they  may  suppose  is  a  casus  omissus  m 
the  constitution,  nor  declare  unconstitutional  an  act  of  the  legisla- 
tare  which  they  conceive  wrong,  unjust,  or  oppressive. 

Nothing  then,  is  more  important,  in  securing  the  harmonious 
workings  of  our  system  of  free  government,  than  that  each  of  these 
three  departments  between  whom  the  sovereign  power  is  distribu- 
ted, should,  respectively,  keep  Avithin  its  own  legitimate  sphere  of 
action. 

While  the  legislature  cannot  overstep  the  prescriljed  bounds  of 
power  contained  in  the  constitution,  the  Judicial  power  is  also 
limited,  and  they  are  confined  to  the  duty  of  ascertaining  whether 
any  given  laws  do  violate  the  constitution.  It  is  not  for  the  judi- 
ciary or  the  executive  departments  to  enquire  whether  the  legisla- 
ture has  violated  the  genius  of  the  government,  or  the  general  prin- 
ciples of  libert}^  or  the  rights  of  man,  or  whether  these  acts  are 
wise  or  expedient, — but  only  Avhether  the  legislature  has  tran- 
scended the  limits  prescribed  by  the  fundamental  law.  a 

Upon  the  American  theory  of  state  governments,  the  legislature 
possess  all  legislative  power  not  prohibited.  Upon  this  theory, 
there  is  a  vast  field  of  undefined  power,  not  reserved,  given  away 
or  prohibited,  in  which  the  legislature  can  exercise  fuU  and  un- 
controlled dominion  ;  their  use  of  this  great  domain  is  limited  only 
by  their  own  discretion ;  the  people  have  conferred  on  them  the 
whole  omnipotence  of  the  British  parhament,  except  in  so  far  as 
it  is  limited  by  the  prohibitions  of  the  constitution  itself,  and  by 
those  powers  which  they  had  previously  granted  to  be  exercised 
by  the  federal  constitution.  True,  these  great  powers  so  confeiTed 
by  the  people,  are  liable  to  be  abused,  and  experience  has  taught 
the  lesson,  that  they  are  abused ;  but  this  is  inseparable  from  the 
nature  of  all  human  institutions.  The  wisdom  of  man  has  never 
conceived  of  a  government  with  power  sufficient  to  answer  its  legi- 
timate ends,  and  at  the  same  time  incapable  of  mischief,  h 

a  Weisler  V.  Hade,  52  renn.  St.  E.  478;  Sill  v.  Village  of  Corning,  15  X.  Y. 
303;  People  v.  Siipemsors  of  Orange,  27  Barb.  593  ;  People  v.  Toyubee,  2  Park 
Crim.  R.  533. 

a  Sharpless  v.  Mayor  of  Pliilacielphia,  9  Harris  IGl. 

47 


370  OF  COXSTITUTIOXAL  TO^'EES  AND  LimTATIONS. 

No  political  system  can  be  made  so  perfect  tliat  those  entrusted 
with  power  will  not  sometimes  depart  from  the  true  course  of  rec- 
titude. In  the  best,  much  must  be  trusted  to  the  discretion  ol 
those  to  whom  power  is  committed.  So  in  ours,  the  people  have 
confided  large  powers  to  the  legislature,  and  must  rely  upon  tho 
wisdom  and  honesty  of  their  representatives  for  a  faithful  execu- 
tion of  their  duties  ;  and  the  representative  AveU  knows,  that  he  is 
directly  accomitable  to  his  constituents  for  the  manner  in  which 
he  discharges  his  trusts,  and  that  those  constituents  possess  the 
power  to  correct  the  evil  by  dismissing  him,  or  more  properly,  by 
refusal  further  to  continue  him  in  place. 

In  the  practical  workings  of  our  system  it  is  seen,  and  to  be  deplor- 
ed, that  from  time  to  time,  members  of  the  legislatm-e,  not  only  forget 
their  duties,  but  utterly  disregard  the  obligations  they  owe  to  their 
constituency,  nay,  even  recklessly  trample  upon  the  most  sacred 
principles  of  right  and  justice ;  stHl,  if  they  act  within  the  scope 
of  powers  conferred  upon  them,  and  are  not  prohibited  by  the 
constitution,  the  judicial  power  cannot  pronounce  the  act  void, 
merely  because  in  their  judgment  it  is  contrary  to  the  principles 
of  natural  justice,  a  Nor  is  it  certain  that  it  would  be  wise  to 
change  the  constitution  for  this  cause,  and  confer  upon  judges  the 
power  of  exercising  a  corrective  against  unwise,  oppressive,  or 
corrupt  legislation.  The  power  would  still  be  left  to  the  exercise 
of  the  judgment  of  fallible  men,  and  it  is  not  beyond  the  power  of 
imagination,  to  conceive  of  judges,  as  corrupt  as  legislators. 

But  the  question  will  be  further  discussed  as  to  the  legislative 
powers  under  state  constitutions  of  the  right  to  take  private  pro- 
perty for  public  use,  when  we  come  to  treat  of  the  right  of  eminent 
domain,  and  the  extent  of  the  taxing  power. 

a  Culder  t.  Bull,  3  Dallas,  E.  399.  Sottcrlee  v.  Mattemore,  2  Peters,  E.  380. 
Fletcher  v.  Peck,  G  Crancli.  87. 


OP  CONSTITUTIONAL  POWERS  AND  LIMITATIONS.  371 


CHAPTER  XL 

OF  THE  LIMITATION  OF  CONSTITUTIONAL  POWER  IN  TAKING  PRI- 
VATE PROPERTY  FOR  PUBLIC  USES,  UNDER  THE  RIGHT  OF 
EMINENT  DOMAIN. 

We  have  already  shown  the  omnipotence  of  absolute  legislative 
})ower,  when  unrestrained  by  constitutional  restrictions.  Under 
the  sovereign  power  of  every  government,  the  right  of  taking  pri- 
vate property  for  public  use  is  one  of  its  incidents.  The  necessity 
for  exercising  this  right,  is  to  be  determined  by  the  legislative 
power,  subject  to  the  constitutional  permission,  and  its  condition 
of  limitation. 

The  fifth  article  of  the  amendments  to  the  federal  constitution 
prohibits  private  property  from  being  taken  for  pubhc  use,  with- 
out just  compensation.  This  condition,  is  a  right  that  pertains  to, 
secures,  and  may  be  claimed  by  every  citizen  of  the  United  States. 
This  right  to  take,  subject  to  this  condition,  has  ever  been  held  to 
bo  one  of  the  high  prerogatives  of  sovereignty,  when  necessity 
calls  it  into  exercise  for  the  pubhc  use,  only,  and  it  is  thus  hmited 
by  the  national  constitution,  and  by  the  condition  annexed,  or 
rendering  to  the  citizen,  a  just  compensation.  The  same  condition 
is  imposed  by  the  constitution  of  the  state  of  New  York,  by  sec- 
tion 6,  article  1,  of  the  constitution  of  18J:6.  In  states  where  no 
such  condition  is  found  in  the  constitution,  it  has  been  held  to  be 
secured  to  the  citizen  by  the  prmciples  of  natural  justice,  a  which 
is  ever  the  universal  common  law  of  mankind. 

We  find  it  declared  by  the  highest  court  in  this  state,  h  notwith- 
standing the  constitutional  protection  to  private  property,  that 
there  are  still  two  different  and  distinct  principles  upon  which 
private  property  may  be  justly  taken,  used,  or  destroyed  for  the 
benefit  of  others.     Both  of  these  principles,  are  commonly  compre- 

a  Bristol  v.  Ne-wchester,  3  N.  Hamp.  R.  535;  Jones  v.  Walker,  2  Paiue,  6S8;  De- 
Varraigne  v.  Fox,  2  Blatch.  95. 

b  Stone  v.  Mayor  of  N.  Y.,  25.  Wend.  173. 


372  THE   EIGHT   OF  EMINENT  DOMAIN. 

hended  and  confounded  iu  the  phrase  of  "taking  ordestroymg  pri- 
vate property  for  the  piablic  benefit."  One  of  these  prmciples  is 
appUed,  ^Yhen  the  i)roperty  of  an  individual  is  talcen  by  the  au- 
thority of  the  state  for  the  conjnion  use  or  benefit  of  the  public ; 
that  is  to  say,  either  for  the  general  use  and  benefit  of  the  people 
of  the  state  in  its  aggregate  character,  or  else,  of  all  such  citizens, 
•without  distinction,  as  may  happen  to  have  occasion  for  the  use  of 
such  property.  Such  as  lands  taken  for  a  canal,  or  a  road,  are  in- 
stances of  such  application. 

Such,  too  in  another  and  secondary  form,  is  the  taking  of  lands 
by  a  coi"porate  company  for  a  railroad,  or  turnpike,  under  state 
authority,  "svherc  the  company  enjoying  a  public  fi'anchise,  so  far 
represents,  and  is  a  tnistee  for  the  public.  And  this  is  done  solely 
by  virtue  of  that  right  of  eminent  domain,  whereby  the  whole  prop- 
erty of  individuals  who  compose  the  state,  in  held  subject  to  the 
sovereign  authority,  to  be  used  for  the  common  advantage.  It 
rests  substantially  upon  the  same  foundation  with  the  right  of  tax- 
ation. 

In  otwithstanding  these  safeguards  in  the  constitution,  it  is  and 
ever  has  been  universally  conceded,  and  at  this  day,  cannot  be 
justly  disputed,  that  in  our  own  government,  (as  really  in  every;  other 
civihzed  political  government,)  there  inheres,  necessarily,  the  right, 
and  the  d'di/,  of  guarding,  securing,  and  continuing  its  own  exist- 
ence ;  and  of  protectmg  and  promoting  the  interests  and  welfare 
of  the  whole  comnmnity  at  large.  This  power,  and  this  duty,  are 
to  be  exerted  not  only  in  the  highest  acts  of  sovereignty,  and  in 
the  external  relations  of  governments,  but  they  reach  and  compre- 
hend also,  the  interior  polity  and  relations  of  social  life,  which 
should  be  regulated  with  reference  to  the  advantage  of  the  whole 
society.  Among  these  powers  of  government,  is  that  which  is  de- 
nominated the  eminent  domain  of  tlie  state.  This,  as  its  name  im- 
ports, is  paramount  to  all  jmvatc  rights  vested  under  the  govern- 
ment, which  last  rights,  are,  by  necessary  implication,  held  iu  sub- 
ordination to  the  power  of  eminent  domain,  and  must  yield  in  every 
instance  to  its  proper  exercise,  a 

It  is  a  question  not  now  controverted,  that  under  every  estab- 
lished form  of  government,  the  tenure  of  property  is  derived  me- 

o  West  River  Br'uV'e  Co.  v.  Dix,  GIIow.  U.  S.  R.  531. 


THE  RIGHT  OF  EMINENT  DOMAIN.  6(6 

diately,  or  immediately  from  the  sovereign  power  of  the  state,  as 
a  poUtical  body,  organized  in  such  mode,  or  exerted  iu  such  a  svay 
as  the  people  have  thought  proper  to  ordain.  It  can  rest  on  no 
other  foundation  ;  it  can  have  no  other  giiuraiitee.  It  is  owmg  to 
this  theoiy,  only,  that  appeals  can  be  made  to  the  laws,  either  for 
the  protection,  or  assertion  of  the  rights  of  property.  Upon  any 
other  hj'pothesis,  the  law  of  property  would  be  simply  the  law  of 
force.  The  instances  of  the  exertion  of  this  power,  in  some  mode 
or  other,  from  the  very  foundation  of  civil  government,  have  been 
so  numerous  and  familiar,  that  at  this  day,  little  doubt  or  ques- 
tion is  seriously  or  intelligently  made  against  it,  and  it  seems  to 
be  as  well  conceded,  that  the  power  to  exercise  it  remains  with  the 
state  government,  except  when  its  exorcise  is  demanded  for  na- 
tional purposes ;  and,  as  is  conceded,  tliis  power  is  not  brought 
within  the  pur\aew  of  the  constitutional  restriction.  At  all  events, 
the  power  of  appropriation  of  property  to  public  uses,  has  never 
been  held  by  any  judicial  tribunal  as  impauiug  the  obligation  of 
contracts  between  the  state  and  its  citizens  in  the  sense  of  the 
constitution,  nor,  that  this  was  a  power  granted  to  the  general 
government. 

The  exercise  of  the  right  of  eniiueut  domain,  by  which  individual 
property  is  taken  for  public  use,  is  an  inherent  power  of  sover- 
eignty, and  is  a  necessity  of  government ;  were  it  not  so,  the  will 
or  caprice  of  an  individual,  might  obstruct  and  defeat  the  most 
important  enterpn'ses  for  public  or  governmental  improvements. 

The  constitution  of  neither  the  federal  government,  nor  of  the 
states,  have  altered  this  rule  of  the  common  law.  The  legislature 
of  the  state  of  New  York  have  declared,  that  "  the  people  of  tliis 
state  in  their  right  of  sovereignty,  are  deemed  to  possess  the 
original  and  ultimate  property  in  and  to  all  lands  within  the  jiuis- 
diction  of  the  state."  a  The  right  to  take  property  for  public  use, 
therefore,  is  but  the  exercise  of  the  po-sNer  which  was  originally 
vested  in  the  people  in  their  collective  capacity  ; — which  they  have 
retained  over  the  property  of  individuals ; — and  which  they  can 
resume  at  any  time  when  necessary  for  pubhc  use. 

This  right  is  complete  without  any  action  on  the  part  of  the 
state,  in  ceiiain  property  in  which  it  is  supposed  no  interest  had  ever 

(/  1  Kev.  Stat.  718,  §  1,  4  Kent's  Com.  3  ;  Taylor  v.  Porter,  1  Hill.  14.",. 


374:  THE   EIGHT  OF  EMINENT  DOMAIN. 

been  acquired  by  indi^dduals ;  such  as  the  rights  of  na^dgation,  in 
its  lakes  and  other  navigable  waters ;  the  rights  of  fishery  in  certain 
public  M-aters ;  and  the  right  of  the  state  to  precious  metals  which 
may  be  mmed  within  its  hniits.  It  is  seldom  however,  that  it  be- 
comes necessary  to  speak  of  eminent  domain,  except  in  connection 
with  those  cases  in  which  the  government  is  necessitated  to  appro- 
priate property  against  the  will  of  the  owners.  The  right  itself  is 
generally  defined,  as  if  it  were  restricted  to  such  cases.  It  is  said 
to  be  that  superior  right  of  property  j)ertaining  to  the  sovereignty, 
by  which  the  private  property  acquired  by  its  citizens  under  its 
protection,  may  be  taken,  or  its  use  controlled  for  the  public  bene- 
fit without  regard  to  the  wishes  of  the  owners,  a 

Tliis  right  is  supposed  to  have  existed  anterior  to  the  constitu- 
tion or  statute ;  it  is  an  acloiowledged  principle  of  the  social  com- 
pact, which  is  understood  to  have  been  assented  to  by  the  original 
members  of  it,  that  in  pubhc  emergencies,  the  right  of  indi\dduals 
over  their  property,  must  yield  to  the  superior  necessities  of  the 
state.  The  fi-amers  of  our  national  and  state  constitutions,  it  is  sujo- 
posed,  framed  this  protective  clause  from  the  principles  laid  down 
by  the  ancient  writers  of  public  law  applicable  to  this  subject. 
But  except  for  the  extreme  right  to  resort  to  this  power,  the 
security  of  fife,  liberty  and  property,  lies  at  the  foundation  of  the 
social  compact ;  and  to  say,  that  the  grant  of  legislative  power,  in- 
cludes in  it  the  right  to  attack  private  property  ;  is  equivalent  to 
saj-ing,  that  the  people  have  delegated  to  their  servants  the  power 
of  defeating  one  of  the  great  ends  for  wliich  the  government  was 
established. 

This  right,  in  a  general  sense,  pertains  to  the  state,  rather  than 
to  the  national  government ;  though  whenever  the  same  reasons 
exist,  on  which  the  right  rests,  viz.,  the  necessities  of  government, 
for  the  purpose  of  performing  its  ordmary  and  essential  functions ; 
perpetuating  its  existence  ;  and  controlling  and  regulating  matters 
of  a  public  natiu'e  for  the  benefit  of  its  citizens  in  common  ;  the 
national  government  possess  the  same  inherent  power  to  exercise 
the  right  of  eminent  domain,  as  an  incident  of  government. 

Private  property  taken  for  public  use  by  right  of  eminent  do- 

a  Cooley  on  Const.  Lim.  524;  Pollard's  Lessees  v.  Hagan,  3  How.  U.  S.  R.  223; 
People  V.  Mayor,  &c.,  N.  Y.  32,  Barb.  112,  119. 


THE  EIGHT  OF  EMEsEN'T  DOiLVIN.  375 

inain,  (unlike  taking  it  by  taxation,)  is  taken,  not  as  the  owners 
share  of  contribution  to  a  public  burthen,  but  as  so  much  beyond 
his  share ;  a  and  it  operates  upon  the  individual,  without  reference 
to  the  amoimt  or  value  exacted  from  any  other  mdividual,  or  class 
of  individuals. 

"  This  right  of  resumption  of  property  for  public  use,  may  be 
exercised  not  only  where  the  safety,  but  also  where  the  interest, 
or  even  the  expedience  of  the  state  is  concerned,  as  where  land 
is  w'anted  for  a  road,  canal,  or  other  public  improvement."  h  "  It 
belongs  to  the  legislature  to  determine,  whether  the  benefit  to  the 
pubhc  fi'om  an  improvement,  is  of  sulKcieiit  importance  to  justify 
the  exercise  of  the  right  of  eminent  domain,  in  thus  interfering 
with  the  private  rights  of  individuals."  In  cases  of  pubhc  im- 
provements, fi'om  which  a  benefit  would  result  to  the  pubhc,  this 
right  of  eminent  domain  may  be  exercised,  either  directly  by  the 
agents  of  the  government,  or  through  the  medium  of  coi-porate 
bodies,  or  by  means  of  individual  enterprise."  c 

But  the  sovereign  power,  has  no  right  to  take  the  property  of  'i 
one  citizen  and  transfer  it  to  another,  even  for  a  full  compensation,   \ 
where  the  public  interest  will  not  be  promoted  thereby ;  and  an   \ 
act  of  the  legislature  making  such  a  transfer,  would  be  a  violation    '' 
of  the  contract  by  which  the  land  was  granted  by  the  government ; 
and  repugnant  to  the  constitution,  d 

"  It  cannot  be  a  rightful  attribute  of  sovereignty  in  any  govern- 
ment professmg  to  be  foimded  upon  fixed  laws,  however  despotic 
the  form  of  the  government  might  be,  to  take  the  propei-ty  of  one 
individual,  and  bestow  it  upon  another.  The  possession  and  exer- 
cise of  such  a  power,  would  be  uicompatible  with  the  nature  and 
object  of  aU  government ;  for  it  being  admitted  that  a  chief  end 
for  which  government  is  instituted,  is,  that  every  man  may  enjo}- 
his  own  ;  it  follows  necessarily,  that  the  rightful  exertion  of  a 
power  by  the  government,  of  taking  arbitrarily  fi-om  any  man 

a  People  v.  Mayor  of  Brooklj-u,  4  N.  Y.  424. 

b  Beekman  v.  Saratoga  &  Schenectady  R.  R.  Co.,  3.  Paige  73;  Wager  v.  Troy 
Union  R.R.  Co.,  25  N.  Y.  530. 

c  Id;  Williams  V.  N.  Y.  Cent,  R.  R.  Co.,  IG  X.  Y.  R.  97;  DoVarraigne  v.  Fox,  2 
Blatch.  95. 

d  Varick  v.  Smith,  5  Paige,  137;  Beekmau  v.  Sar.  &  Schenectady  R.  R.  Co.,  3 
Paige,  73. 


376  THE  EIGHT   OF  EMINENT  DOMAIN. 

what  is  liis  own,  for  the  purpose  of  giving  it  to  another,  would  sub- 
vert the  foundation  principle  upon  which  the  government  was  or- 
ganized, and  resolve  the  political  community  into  its  original  cha- 
otic elements,"  «  even  though  compensation  be  made. 

But  it  is  no  objection  to  the  power  conferred  by  the  legislature 
upon  a  corporation  to  take  such  property, — that  it  contributes 
also  to  the  emolument  or  advantage  of  such  corporation,  or  to 
that  of  mchviduals.  h  But  such  a  power  should  not  be  attempted 
by  the  legislatm'e,  imless  the  benefit  which  is  to  result  to  the  pub- 
he  is  of  paramount  importance,  in  comparison  with  thq  individual 
loss  or  inconvenience,  c 

There  has  been  much  controversy  in  the  courts,  imposing  great 
emban'assment  on  them,  in  settling  the  Ime  of  demarkation  be- 
tween a  use  that  is  public,  and  one  that  is  strictly  private  ;  no  rule 
can  be  laid  down  that  will  apply  to  all  cases. 

The  great  difficulty  that  attends  the  exercise  of  this  right,  is,  m 
determining  the  limits  that  rightfully  bound  it ;  for  while  all  admit 
the  right,  no  one  succeeds  in  defining  clearly  the  degree  of  neces- 
sity that  justifies  the  exertion  of  it ;  in  fact,  the  attempt  to  estab- 
lish a  rule,  would  show  that  it  was  impracticable.  "  It  takes  place 
(say  the  writers  upon  natural  law,)  only  in  case  of  state  necessity, 
which  ought  not  to  have  too  great  an  extent,  but  should  be  tem- 
pered as  much  as  possible  with  the  rules  of  equity,  d 

This  right  of  eminent  domain,  is  not  of  itself  a  power  granted 
by  statute.  The  scope  of  discussion  proposed  in  this  work,  there- 
fore, is,  what  hmitations  the  constitution  has  imposed  upon  its  ex- 
ercise. 

Whether  or  not  the  purpose  for  which  private  property  is  taken, 
is  a  pubhc  use,  must  as  a  general  rule,  be  left  to  the  wisdom  of  the 
legislature  to  determine,  e  Some  of  the  state  governments  by 
their  legislation,  have  gone  much  farther  than  others  in  the  exer- 
cise of  this  power.  Its  appropriate  exercise  by  government,  should 
be  confined  to  its  own  necessities,  in  furnishing  facilities  to  its  cit- 

aBloorlgood  v.  M.  &  H.  E.  E.  Co.,  18  Wend.  5G;  EDibury  v.  Connor,  3  N.  Y. 
511,  517;  Taylor  v.  Porter,  4  Hill,  140. 

h  Heyward  v.  Mayor  of  New  York,  7  N.  Y.  314;  Buffalo  &  N.  Y.  R.  E.  Co.  v. 
Brainard,  9  N.  Y^  100;  People  v.  Smith,  21  N.  Y.  598. 

c  Id.  16.  d  Burlimaque  Prin.Law,  145. 

e  2  Kent's  Com.  340. 


THE  EIGHT  OF  EMINENT  DOMAIN.  377 

izens,  iu  regard  to  tliosc  matters  of  public  needs.  Convenienco 
or  welfare,  Avliicli,  on  account  of  their  peculiar  character,  and  the 
difficulty  of  making  provision  for  them  otherwise,  it  is  both  proper 
and  usual  for  the  government  to  provide,  a ' 

This  ground  of  pubHc  necessity  rests  upon  the  basis,  that  private 
property  must  yield  and  become  subsen-ient  to  the  pubhc  welfare ; 
and  the  power  to  take,  may  be  exercised  directly  by  the  goveni- 
a  Cooley  ou  Const.  Lim.  533. 

Note  1.— The  ])roinicty  of  taking  private  property  for  a  public  use,  is  not  a 
judicial  question,  but  one  of  political  sovereigntj',  to  be  tletorniined  by  the  legis- 
lature, either  directly  or  by  delegating  the  power  to  public  agents,  proceeding  in 
such  form  and  nianner  us  it  may  prescribe.  People  ex  rel  Herrick  v.  Smith,  21 
N.  Y.  595,  598. 

It  was  held  by  Judge  McLean,  in  the  supreme  court  of  the  United  States,  at 
Chambers,  the  report  of  which  is  found  in  Vol.  3,  Law  Reg.,  No.  3,  Old  Series, 
page  G03,  in  the  case  of  the  United  States  v.  The  Railroad  Bridge  Co. ,  that  the 
right  of  eminent  domain  was  in  the  state,  and  that  they  can  authorize  a  railroad 
through  the  public  lands  of  the  United  States  located  in  such  state.  He  said,  p.  G17, 
&c. :  "A  state  in  the  discharge  of  its  ordinary  functions  of  sovereignty,  has  a  right 
to  provide  for  an  intercourse  between  its  citizens,  commercial  and  otherwise,  in 
every  part  of  the  state,  by  tlie  establishment  of  easements,  whether  they  be  common 
roads,  turnpikes,  plank,  or  railroads.  The  kind  of  easement  must  depend  upon 
the  discretion  of  the  legislature.  And  this  power  extends  as  well  over  the  lands 
of  the  United  States,  as  to  those  owned  by  individuals."  "It  is  a  power  which 
belongs  to  the  state,  and  the  exercise  of  which  is  essential  to  the  prosperity  and 
advancement  of  the  country." 

An  act  of  the  legislature  which  authorizes  a  railroad  corjioration  to  use  the 
streets  of  a  city  for  laying  the  track  of  its  road,  is  not  taking  of  puhllc  property 
for  local  or  private  use,  and  is  therefore  constitiitional.  People  v.  Law,  34  Barb. 
494.  But  where  the  adjacent  proprietors  have  title  to  the  centre  of  the  street, 
subject  to  the  public  easement  and  rights  in  the  street,  it  cannot  be  so 
taken  except  upon  full  compensation,  they  still  possess  rights  which  courts 
are  bound  to  protect.  People  v.  Law,  34  Barb.  494.  The  use  of  the  street 
by  the  railroad  is  a  new  burthen,  beyond  the  public  easement,  which  cannot  be 
imposed  by  legislative  authority  without  compensation  to  the  owners  in  fee. 
Wager  v.  The  Troy  Union  R.  R.  Co.,  25  N.  Y.  526;  Williams  v.  N.  Y.  Cent.  R.  R. 
Co.,  IG  N.  Y.  97.  But  the  use  of  streets  in  the  city  of  New  York,  taken  under  the 
right  of  eminent  domain,  for  city  railroad  purposes,  under  the  authority  of  the 
act  of  the  legislature,  is  not  a  taking  of  private  property  for  public  use  in  such  a 
sense  as  to  require  compensation  to  be  made  to  the  owner  of  the  adjacent  lots. 
The  fee  of  the  streets  in  that  city  was  acquired  under  an  act  of  the  legislature,  2 
R.  S.  209,  Act  of  1813.  The  city  hold  the  fee  of  the  streets  in  trust  for  public 
use,  for  all  the  people  of  the  state,  and  not  as  corporate  or  municipal  property. 
The  ivvLst  hcing  puhlici  juris,  it  is  under  the  unqualified  control  of  the  legislature. 
People  v.  Kerr,  27  N.  Y.  188. 
48 


378  TEE  EIGHT  OF  EMINENT  DOMAIN. 

ment  itself,  or  by  the  agents  of  government,  mdi\'idual  or  corporate 
whom  the  legislature  may  authorize  for  this  pui-pose.  a  Among 
the  pmiioscs  that  have  been  declared  public,  is  that  of  making 
pubhc  highways,  turnpike  and  planla'oads,  railroads,  and  canals;  of 
erecting  and  constructing  wharves  and  basins ;  of  estabhshing  fer- 
ries ;  of  di-aining  swamps  and  marshes ;  of  bringing  water  to  cities, 
villages  and  towns ;  to  raze  houses  to  the  gi'ound  ;  and  to  prevent 
the  spreading  of  a  conflagration.?)  Tliis  last  case  however  is  not  by 
virtue  of  the  right  of  eminent  domain  c  but  a  regulation,  or  a  right, 
gi'owing  out  of  the  law  of  incvitaUe  necessity,  caUed  the  police 
power,  belonging  to  every  inchvidual,  not  conferred  by  law,  but 
tacitly  excepted  from  all  human  codes.  The  right  to  appropriate 
private  property  to  pubhc  uses,  is  to  be  regarded  as  lying  dormant 
in  the  state,  until  legislative  action  is  adopted,  pointing  out  the 
occasions,  the  mode,  conditions  and  agencies  for  its  appropriation. 
It  can  then  only  be  taken  pursuant  to  law,  but  a  legislative  act 
declaring  the  necessity,  is  for  this  purpose,  the  law  of  the  land,  and 
no  further  adjudication  or  finding  is  essential,  d  The  principle 
thus  recognized,  it  has  been  held,  is  no  violation  of  justice  or  sound 
pohcy,  and  in  no  degree  tends  to  impair  the  obligation  or  infi'inge 
upon  the  sanctity  of  contracts.  It  rests  upon  the  basis,  that  public 
convenience  and  necessity  are  of  paramount  importance  and  obli- 
gation, to  which,  when  duly  ascertained  and  declared  by  the  sov- 
ereign authority,  all  minor  considerations  and  private  rights  and 
interests  must  be  held  subordinate;  otherwise  great  pubhc  im- 
provements, rendered  necessary  by  the  increasing  wants  of  society, 
in  the  development  of  ci\dhzation  and  the  progress  of  the  arts ; 
might  be  prevented.  The  only  true  rule  of  policy,  as  well  as  of 
law,  is,  that  a  grant  for  one  pubhc  purpose,  must  yield  to  another 
more  urgent  and  important,  and  this  can  be  efi'ected  without  any 
infi'ingement  on  constitutional  rights  of  the  subject.  If  in  such 
cases,  suitable  and  adequate  provision  is  made  by  the  legislature  for 
the  compensation  of  those  whose  property  or  franchise  is  injured  or 
taken  away,  there  is  no  violation  of  public  faith  or  private  right,  e 

aBeekmanv.  Saratoga  and  Schenectady  RE.  Co.,  3  Paige,  72;  Wilson  v.  The 
Black  Bird  Creek  Marsh  Co.,  2  Pet.  251. 

h  2  Kent's  Com.  338.  c  EusseU  v.  Mayor  of  New  York,  2  Deuio,  4G1 . 

d  Cooley  on  Const.  Limit,  528. 

€  Central  Bridge  Corporation  v.  City  of  Lowell,  4  Gray,  481,  482. 


THE   IJIGIIT   OF  EMINENT  DOMAIN.  379 

But  the  property  of  individuals,  cannot  even  be  appropriated  by 
the  state,  under  this  power,  for  the  mere  purposes  of  adding  to  tlio 
revenues  of  tlic  state.  The  exercise  of  such  a  pow(;r  for  such  a 
purjDose,  ■would  bo  utterly  destructive  of  individual  right,  and 
break  down  all  the  distinctions  between  meum  and  tuuin,  and 
annihilate  them  forever  at  the  pleasure  of  the  state,  a 

It  is  regarded  as  the  duty  of  every  government,  as  the  wants  of 
traffic  and  travel  require  facihties  beyond  those  afforded  by  the 
common  highways,  or  their  own  private  ways,  over  which  the 
pubKc  and  individuals  may  pass  with  their  own  vehicles,  or  ani- 
mals ;  to  provide  and  establish  a  higher  grade,  and  more  improved 
character  of  thoroughfares  for  pubUc  use ;  and  whether  these  are 
constructed  and  kept  in  repair  by  an  assessment  upon  the  citizen, 
by  way  of  money  or  labor,  by  tolls  on  turnpikes  and  canals,  or  by 
fares  on  railroads,  they  are  all  equally  projected  for  pubHc  use ; 
the  public  at  larg 3  arc  interested  in  their  establishment,  and  the 
government  have  the  right  to  apj^ropriate  private  proi^erty  to  that 
end ;  and  such  right  comes  within  this  reserved  power  called  the 
right  of  eminent  domain. 

The  court  of  dernier  resort  in  this  state,  seems  to  have  settled 
the  question  of  power  under  o;ir  constitution,  as  to  the  right  of 
taking  private  property  for  public  pui-poses,  either  directly  by  the 
state  or  otherwise ;  they  have  said,  "  that  the  regulation  of  all 
matters  connected  with  the  internal  traffic  and  commerce  of  the 
state ;  the  development  of  its  wealth  and  resources ;  the  advance- 
ment of  its  material  interests ;  either  by  constructing  of  routes  and 
means  of  communication  and  commerce  between  different  parts 
of  the  state,  by  land  or  water,  is  clearly  Avithin  the  legislative 
power,  which,  by  the  constitution,  is  vested  in  the  senate  and  as- 
sembly. A  restriction  upon  the  legislature  in  respect  of  a  matter 
which  is  properly  the  subject  of  legislation,  will  not  be  implied, 
but  must  be  clearly  expressed.  It  will  not  be  presumed  in  the 
absence  of  a  clearly  expressed  intent,  that  it  was  designed  to 
cripple  the  power  of  the  legislature  in  20  important  a  part  of  its 
duties,  as  to  deprive  it  of  the  power  to  develope  the  resoui'ces  of 
the  state*  and  attract  within  its  Hmits  the  commerce  and  trade  of 
other  states  by  making  available  private  enterprise,  or  by  creatmg 

a  Buckingham  v.  Smith,  10  Ohio  R.  296. 


380  THE  EIGHT   OF  EMIXENT  DOMAIN. 

other  facilities  for  travel  and  transportation  ;  or  by  any  means 
•wliich  vreie  accessible."  a 

This  extraordinary  power  has  been  exercised  to  a  much  gi-eater 
extent  in  some  of  the  states  than  others,  and  tliis,  creates  such  a 
diversity  of  views  as  to  the  extent  of  the  power,  that  no  line  of 
demarkation  can  be  laid  down  as  a  universal  rule.  By  the  law  of 
the  states  of  Massachusetts,  Maine  and  Ehode  Island,  the  estab- 
lishment of  mills  is  regarded,  as  beneficial  to  the  pubHc,  and  mill 
owners  and  occupants,  are  authorized  to  overflow  the  lands  of  other 
persons,  and  to  take  such  proceedings  therefor,  as  are  provided  in 
the  statutes  of  those  states ;  h  and  the  law  of  North  Carolina  is 
not  materially,  though  somewhat  different,  c 

The  law  in  this  respect,  in  Tirginia,  Kentucky,  Missouri,  Mis- 
sissippi, Alabama  and  Florida,  are  substantially  alike.  By  these, 
a  person  owning  the  land  on  one  side  of  a  watercourse,  who  pro- 
poses to  erect  a  water  giist  mill,  or  other  machine  or  engme,  use- 
ful to  the  public,  may  make  application  to  the  court,  through 
which,  by  appraisement  by  a  jury,  he  obtains  the  right  to  use  the 
opposite  bank — and  the  right  to  flow  the  lands  of  others,  provided 
the  flowing  does  not  extend  to  a  house,  yard,  &c.,  and  not  to  create 
a  pubhc  nuisance.  The  proceedings  under  the  statutes  being 
regular,  immediately  divests  the  title  of  the  owner  of  the  land  and 
vests  it  in  the  commonwealth,  in  full  and  absolute  dominion,  d 

The  constitutional  soundness  of  these  statutes,  has  been  gi-eatly 
doubted  in  other  states,  but  long  acquiesence,  and  repeated  judi- 
cial and  legislative  precedents,  would  seem  now  to  put  it  out  of 
the  power  of  individuals,  to  test  the  soundness  of  the  basis,  upon 
which  the  governmental  action  has  proceeded,  e 

An  act  of  the  legislature  taking  land  in  this  state  for  pubUc  use, 
is  not  even  unconstitutional,  because  the  instrumentality  employed 

a  The  People  v.  N.  Y.  Cent.  EE.  Co,  24  N.  Y.  497,  8;  People  v.  Draper,  15  id.  54u. 

b  The Bo.ston &  Eoxbiiry  Milldam  Corporation  V.  Newman,  12  Pick.  467;  French 
V.  Braintree  Manufac.  Co.,  23  id.  219;  Eev.  Laws  of  Mass.,  Ch.  116;  Eev.  Laws  of 
Maine  in  Append,  p.  9;  Laws  of  Ehode  Island  (Ed.  1844)  and  Append,  p.  15. 

c  See  Gillette  v  Jones,  1  Dev.  &  P>at.  E.  339,  and  the  N.  C.  Statute  therein  re- 
ferred to. 

(Z  Statute  of  Virginia  in  Append,  p.  22;  Statute   of  Kentucky  of  1797,  1  Stat. 

Kentucky,  606;  Laws  of  Indiana,  65,  Eev.   Code  of  1831;  Laws  of  Missouri,  587; 
Clay's  Dig.  of  Laws  of  Alabama  376;  Thompson's  Dig.  of  Laws  of  Florida  401,  &c. 
e  Matter  of  Townsend.  39,  N.  Y.  171. 


THE   PJGHT   OF  EMINENT   DOMAIN.  383 

for  that  purpose  is  a  coii^oration  crcatecl  by  the  laws  of  another 
state ;  nor  because  such  corporation  derives  a  pecuniary  benefit 
from  the  use  of  the  lands  so  appropriated ;  nor  because  the  lands 
appropriated,  arc  to  be  used  for  the  maintenance  of  a  navigable 
canal  which  runs  along  the  border  of  the  state,  but  Avithout  its 
limits.  If  the  use  be  in  its  naaire  i)ublic,  the  legislature  are  the 
sole  judges  of  the  question,  whether  the  benelit  to  our  citizens,  or 
to  the  state  is  such,  as  to  warrant  the  taking  of  private  property 
therefor  ;  and  are  also  the  sole  judges  of  the  question,  what  su- 
pervision or  control  over  the  use  should  be  retained,  in  order  to 
secm^e  the  contemplated  benefits. 

But  it  should  be  kept  in  mind  however,  that  whenever  in  pur- 
suance of  law,  the  property  of  an  individual  is  to  be  divested  by 
these  proceedings  against  his  will,  there  must  be  a  strict  compli- 
ance with  all  the  provisions  of  the  laws,  which  are  made  for  his 
protection  and  benefit.  Those  provisions  must  be  regarded  as  in 
the  nature  of  conditions  precedent,  which  must  not  only  be  com- 
plied with  before  the  right  of  the  property  owner  is  disturbed,  but 
the  party  claiming  authority  under  the  adverse  proceeding,  must 
aflirmatively  show  such  comphance. 

In  the  state  of  New  York,  the  legislature  have  never,  it  is  be- 
lieved, attempted  to  exercise  the  right  of  eminent  domain  in  favor 
of  miUs,  "  sites  for  steam  engines,  hotels,  churches,  and  other  like 
public  conveniences,"  a  and  we  do  not  therefore,  deem  it  necessary 
to  hazard  an  opinion,  Avhether  such  a  right  would  be  sustained  if 
granted  ;  though  the  legislature  have  granted  to  municipalities, 
and  districts,  to  take  and  appropriate  for  such  uses,  as  for  district 
school  houses  ;  to  counties  for  their  court  houses  and  jails ;  and 
to  cities  for  town  halls,  reseiToirs  of  water,  sewers,  gas  works,  and 
other  public  works  of  like  importance.  In  such  cases  the  taking 
is  public,  the  use  is  public ;  the  benefits  to  accrue  therefrom  is 
public,  as  it  is  shared  in  a  greater  or  less  degree  by  the  whole 
pubUc.  b 

There  is  no  species  of  property  except  money,  or  rights  in  action, 
that  seem  to  be  exempt  from  the  power  of  government,  to  seize 
and  appropriate  it  to  public  use  under  the  right  of  eminent  domain. 

a  Hay  v.  Coliocs  Co.  3.  Barb,  47. 

b  Cooley  on  Const  Lim,o37  ;  Nichols  v.  Brulgcport.  23  Com,  189. 


382  THE   EIGHT   OF  EMINENT  DOMAIN. 

Taking  money  under  the  right  of  eminent  domain,  when  it  must 
be  compensated  m  money  afterwards,  could  be  nothing  more  nor 
less  than  a  forced  loan,  Avhich  could  only  be  justified  as  a  last  re- 
sort in  a  time  of  extreme  peril,  where  neither  the  credit  of  the  gov- 
ernment, nor  the  power  of  taxation  could  be  made  available. 
This  would  rather  be  a  case,  coming  umier  no  law,  but  that  of  an 
oveiTuling  necessity,  a  The  right  to  a  franchise,  is  of  no  higher 
order,  and  confers  no  more  sacred  title  than  the  right  to  land' 
and  when  the  public  necessities  require  it,  the  one  as  well  as  the 
other  may  be  taken  for  pubhc  purposes,  on  making  suitable  com- 
pensation ;  nor  does  such  an  exercise  of  the  rights  of  eminent  do- 
main, interfere  with  the  inviolabihty  of  contracts,  if  such  fi'anchise 
happens  to  be  a  gi'ant.  h 

Lands  for  public  ways,  timber,  stone  and  gravel  to  make  and 
improve  or  repair  public  ways  and  canals ;  c  a  building  that  stands 
in  the  way  of  a  contemplated  improvement ;  or  which  for  any 
other  reason  it  is  necessary  to  take,  remove  or  destroy  for  the 
public  good;(i  streams  of  water,  e  corporate  franchises,/  and 
generally  it  may  be  said,  legal  and  equitable  rights  of  eveiy  de- 
sciiption,  g  may  be  so  taken. 

The  legislature  has  power  to  authorize  a  corporation  or  indi- 
viduals and  their  assigns  in  constructing  and  operating  a  rail- 
road, "  to  run  upon  or  mtersect  or  use  any  portion"  of  the  railroad 
track  of  another  company  upon  making  due  compensation  there- 
for, h  And  where  the  legislature  by  an  act  authorize  the  con- 
struction of  highways  across  railroad  tracks,  without  compensa- 
tion, they  do  not  violate  the  constitutional  provisions  against 
taking  private  property  for  public  uses,  or  impair  the  obligation  of 
a  contract.  The  title,  which  a  railroad  corporation  acquires  to 
its  own  track,  is  quahfied,  as  being  taken  for  public  use,  and  for 

a  Id  527. 

h  Eichmond  EK..  Co  v.  Louisa  EE.  Co.  13  How,  71;  West  Eiver  Bridge  v.  Dis. 
G  How,  507;  Matter  of  Kerr.  42  Earb,  119. 

c  Wheelock  v.  Young,  4  Wend.  647;  Lyon  v.  Jerome,  15  Wend.  5G9. 

d  Wells  V.  Somerset,  47  Maine  E.  345.  e  Gardner  v.  Newburgh,  2  John.Ch.  1C2. 

/Piscataqua  Bridge  v.  N.  Hampshire  Bridge,  7  N.  Hamp.  E.  35. 

g  Cooley  on  Const.  Lim.  526. 

A  Matter  of  Kerr,  42  Barb.  119,  and  cases  cited;  Sixth  Avenue  E.  E.  Co.v. 
Kerr,  45  Barb.  141. 


THE  rJGnX  OF  EMINENT  DOMAIN.  383 

the  pmposc  of  the  incorporation,  and  is  subject  to  the  exercise  by 
the  legislature  of  all  the  poAvers  to  -which  the  franchises  of  the 
corporation  are  subject,  a 

We  have  already  said,  the  question  of  the  necessity  for  the  ex- 
ercise of  this  power  belongs  to  the  government,  and  is  only  exer- 
cised -when  authorized  by  tlie  legislative  department,  and  over 
which  tlio  judicial  i)ower  possesses  no  control.  The  question  is 
always  regarded  as  being  one  of  political  sovereignty  in  character. 

We  do  not  intend  by  this,  to  say,  that  the  exjDression  by  the 
legislature  that  it  is  for  the  public  interest  in  a  particular  case  to 
exert  the  right  of  eminent  domain,  determines  that  question  ;  that 
would  be  setting  the  legislative  power  above  the  constitution,  but 
only  to  concede  to  the  legislature  the  right  to  appropriate  private 
property  to  public  use. 

When  the  public  use  is  local  and  limited,  the  power  is  often 
conferred  upon  some  local  tribunal,  or  agent,  and  given  to  them 
to  decide  upon  the  necessity,  and  regulate  the  proceeding  ;  and  the 
omission  to  provide  for  a  trial  by  jury  in  such  case,  Ls  held  to  be 
no  violation  of  constitutional  right,  h  and  the  state  is  under  no 
obligation  to  make  provision  for  judicial  contest  upon  that  ques- 
tion ;  though  this  is  often  done,  as  in  cases  of  laying  out  high- 
ways, &c. 

The  appropriation  of  private  property  for  this  purpose,  must 
however,  always  be  limited  to  the  necessity  of  the  case  ;  and  this 
question  of  necessity  is  one  over  which  the  judicial  power  has  some 
control.  No  more  of  private  property  can  be  so  appropriated  than 
the  proper  tribunal  shall  adjudge  to  be  necessaiy  for  the  particular 
use  for  which  the  appropriation  is  made.  When  only  a  part  of  a 
man's  lands  are  needed  by  the  public,  this  will  not  justify  the  tak- 
ing of  the  whole,  even  though  it  should  be  taken  under  the  provi- 
sions of  a  statute  of  the  legislature,  authorizing  the  taking  the 
whole.  The  moment  the  appropriation  goes  beyond  the  necessit}' 
of  the  case,  it  ceases  to  be  justified  by  the  principles  which  under- 
lie the  right  of  eminent  domam.  c 

This  question  has  caused  much  Utigation  in  the  courts,  and  was 

a  Albany  Northern  R.  E.  Co.  v.  Brow'nell,  24  N.  Y.  345,  349. 

h  People  V.  Smith,  21  N.  Y.  E.  5'J5. 

c  Cooley  on  Const.  Lim.  540  ;  Bennett  v.  Boyle,  40  Barb.  551. 


384  THE  EIGHT  OF  EMINENT  DOJMAIN. 

left  by  the  statutes  of  this  state  as  unsettled,  as  to  whom  the  power 
of  exercising  the  discretion  was  vested ;  w^hether  in  the  legislature, 
in  the  railroad  or  other  corporatioji,  or  in  the  courts.  This  ques- 
tion has  been  very  recently  settled  in  this  state  in  regard  to  rail- 
roads, by  an  amendment  of  the  general  statute  concerning  the 
formation  of  such  companies,  w^here  new  lands  are  requked  by  an 
existing  railroad  company,  and  by  a  construction  of  that  amended 
statute  in  the  Court  of  Appeals  a  not  yet  reported. 

Under  an  amendment  of  the  general  act  of  1850,  by  the  statute 
of  185-i,  existing  railroad  companies  were  authorized  to  acquire 
additional  lands/or  iJie  purposes  of  such  company,  as  it  would  have 
in  the  location  of  a  line  of  road  in  the  first  instance.  By  another 
amendment  of  this  general  statute,  by  the  legislature  of  1869,  such 
raih'oad  company,  and  such  existing  railroad  company,  were  au- 
thorized to  acquire  such  real  estate,  or  such  additional  real  estate, 
for  the  purpose  of  its  incorporation,  or  for  the  purpose  of  running  or 
operating  such  road,  or  for  any  other  purpose  necessary  to  the  oper- 
ation of  such  railroads,  ihc.  In  givuig  construction  to  this  amended 
statute,  the  Court  of  Appeals,  as  appears  from  the  syllabus  of  the 
case  reported  in  the  Law  Journal,  1)  laid  down  the  following  eight 
propositions,  viz: 

1.  The  right  to  take  property  for  pubhc  use,  is  to  be  exercised 
by  the  legislative  power,  and  this  power  can  determine  for  what 
purposes  private  property  can  be  taken,  and  when  the  necessity 
exists  which  calls  for  its  appropriation, — and  this  power  can  be 
exerted  through  agents,  whether  individuals  or  corporations. 

2.  The  legislatui'e  may  therefore  authorize  a  railroad  coipora- 
tion  to  take  j^i'ivate  property  for  the  purpose  of  its  incorporation, 
under  a  delegation  of  its  power  of  eminent  domain. 

Under  the  general  raihoad  act,  this  taking  must  be  done  through 
an  application  to  the  court,  upon  notice  to  persons  interested,  and 
a  hearing  and  determination  of  the  court  thereupon. 

3.  Under  the  statute  of  1869,  extending  the  powers  granted  by 
the  original  act  of  1850,  the  determination  of  the  question  of  ne- 
cessity, and  extent  of  appropriation,  is  left  with  the  court,  and  is 
not  vested  in  the  board  of  directors  of  the  railroad  company. 

a  Matter  of  the  Ajiplication  of  the  Eensselaer  &  Saratogi  EE.  Co.  v.  Davis. 
h  No.  57. 


THE  laCIIT   OF  EMINENT  DOiUIN.  385 

4.  The  legislature  have  the  power  to  designate  the  particular 
premises  which  a  railroad  company  may  take  for  its  uses,  but  this 
was  not  done  by  the  statute  of  18G9,  nor  did  it  by  that  statute 
delegate  to  the  raih'oad  company,  the  power  to  determine  the  ne- 
cessity for  the  a])propriation  of  i)rivato  property  for  corporate 
purposes. 

5.  The  acquisition  of  lands  for  the  puiposc  of  speculation  and 
sale,  or  to  prevent  interference  by  competing  lines,  or  in  aid  ol 
collateral  enterprises  remotely  connected  with  the  running  of  the 
road,  though  they  may  increase  its  revenue,  arc  not  such  purposes 
as  authorize  the  condemnation  of  private  property. 

G.  The  taking  of  private  property  for  public  use,  is  in  derogation  L^ 
of  private  rights,  and  in  hostility  to  the  ordinary  control  of  the      ) 
citizen  over  his  estate,  and  is  not  to  be  extended  by  imphcation.     \ 
To  authorize  the  taking  of  land  under  eminent  domain,  the  express     ' 
authority  of  the  law  must  be  shown. 

7.  The  Ecnssclacr  and  Saratoga  llailroad  Company  endeavored 
to  take  a  quantity  of  land  on  the  shore  of  Lake  Champlain,  for 
the  building  of  docks  to  accommodate  vessels  bringing  freight,  and 
the  construction  of  dwellings  for  its  employees  and  officers.  Held, 
under  the  circumstances,  not  necessary  for  corporate  pui'poses. 

8.  The  decision  of  the  special  term  in  such  a  matter,  is  a  final 
adjudication  of  the  question  of  the  right  of  condemnation  imder 
the  statute,  and  an  appeal  lies  to  the  Court  of  Appeals  from  the 
decision  of  the  general  term  thereupon. 

A  statute  of  this  state,  which  enacted  that  in  all  cases  where 
part  only  of  a  lot  or  parcel  of  land  shall  be  required  for  laying 
out  a  street,  if  the  commissioners  deem  it  expedient  to  take  the 
whole  lot  in  the  assessment,  they  shall  have  power  to  do  so,  and 
the  part  not  wanted  for  the  particular  street  or  improvement, 
shall,  upon  the  confumation  of  the  report,  be  vested  in  the  corpo- 
ration, who  may  appropriate  the  same  to  public  uses,  or  sell  the 
same  in  case  of  no  such  appropriation  ;  was  held  to  be  unconsti- 
tutional, and  assumed  a  power  the  legislature  did  not  possess,  a 

The  court  in  that  case,  held,  "that  the  constitution  by  authoriz-  \ 
ing  the  appropriation  of  private  property  to  imhlic  use,  impliedly     \ 
declares  that  for  any  other  use,  private  property  shall  not  bo     1 

a  lu  the  Matter  of  Albanj'  Street,  11  "Weud.  151. 
49 


38G  THE  EIGHT  OF  EMINENT  DOMAIN. 

taken  from  oue,  and  applied  to  the  private  use  of  another.  It  is 
a  vioh\tion  of  natural  right,  and  if  it  is  not  in  violation  of  the  letter 
of  the  constitution,  it  is  of  its  spirit,  and  cannot  be  supported,  a 

So,  it  is  doubtless  true,  that  while  it  belongs  to  the  legislative 
department  to  iletermine  and  declare  the  propriety  of  the  exercise 
of  this  power  of  the  right  of  eminent  domain,  they  cannot  exercise 
it  beyond  the  scoj^e  of  the  line  of  necessity,  and  an  abiise  of  its 
exercise,  can  doubtless  be  controlled  by  the  judicial  poAver.  The 
necessity  upon  which  the  exercise  of  legislative  power  depends, 
relates  to  the  use,  and  the  nature  of  the  property.  Should  the 
legislature  either  by  a  direct  exercise  of  the  poAver,  or  through 
some  subordinate  agency,  under  a  poAver  conferred  by  them,  abuse 
the  authority,  by  using  it  iiTegularly,  oppressively,  or  in  bad  faith, 
there  can  be  no  doubt  of  the  power  of  the  courts  to  furnish  an 
effectual  remedy  against  such  acts,  h 

While  it  is  conceded  that  the  legislatui'e  have  the  power  to  de- 
termine ivJien  public  uses  require  the  assumption  of  private  prop- 
erty— it  is  great]^^  doubted,  nay,  denied,  that  they  can  declare 
that  to  be  a  public  use,  that  is  not  so  ;  as  in  the  case  supposed  by 
Chancellor  Kent,  c  "  If  the  legislature  should  take  the  property 
of  A.  and  give  it  to  B,  such  a  hiAv  Avould  be  unconstitutional  and 
A'oid,  even  if  the  legislature  should  declare  that  to  be  a  pubhc  use." 
Nor  can  it  be  a  rule,  that  in  all  cases  because  the  pubhc  interest 
in  some  degree  Avill  be  promoted  by  such  use,  that  it  is  therefore 
a  pubhc  use.  It  can  hardly  be  sujjposed  that  the  implied 
constitutional  permission  to  take  private  property  stands  upon  a 
broader  basis  of  right  than  such  as  existed  by  the  principles  of 
natural  laAv. 

Constitutional  authority  then,  being  not  gi*eater  than  that  exist- 
ing by  natural  law,  and  the  legislative  power  being  subordinate  to 
the  constitutional,  the  sacred  right  of  private  property  is  above 
the  control  of  the  legislati\'e  power,  except  in  the  cases  of  actual 
necessity  for  public  use.  This  public  use,  is  an  inherent  and  in- 
separable quality,  the  character  of  which  is  not  changed,  merely, 
because  the  legislature  choose  so  to  denominate  it.  Legislative 
discretion  must  not  be  confounded  with  sovereignty  ;  it  is  only  one 

a  Id.  h  Giezy  v.  C.  W.  &  Z.  E.  R.  Co.,  4  Ohio  E.  (N.  S.)  325. 

c  2  Com,  3-10. 


THE   RIGHT  Of  eminent  DOMAIN.  387 

of  three  restricted  organs  of  sovereignty,  and  inasmuch  as  sover- 
eignty itself  is  proliibited  from  taking  private  property,  except  for 
pubhc  use,  and  upon  due  compensation,  no  subordinate  power  can 

do  SO. 

The  cpiantity  of  property  that  may  be  appropriated  in  any 
given  case,  is  left,  it  is  true,  very  indefinite,  but  there  is  no  danger 
of  permanent  abuse,  so  long  as  the  conservative  power  of  the 
courts  are  left  to  protect  such  interests.  It  has  been  controverted 
in  the  courts,  whether  the  power  to  take  property  by  a  railroad 
company  imder  legislative  authority,  extends  to  an  appropriation 
for  depot,  and  station  purposes,  with  grounds  to  receive  and  dis- 
charge freight,  fuel  and  passengers  ;  but  reason  teaches  that  these 
are  but  the  incidents  to  the  main  purpose,  and  are  such  indispen- 
sable appendages  to  the  principal  object,  that  the  main  object 
would  bo  useless  without  it.  a 

We  have  thus  far  in  this  chapter,  been  treating  of  the  reserved 
power  in  our  constitution,  and  in  every  other  sovereignty,  to  ap- 
propriate the  private  property  of  individuals,  to  public  use.  While 
it  is  conceded  that  this  power  exists,  it  exists  only  with  a  con- 
comitant constitutional  restriction,  that  it  shall  not  be  taken  for 
public  use  without  just  compensation,  h  and  with  the  further  pro- 
tection to  the  citizen,  that  when  so  taken,  the  compensation  to  be 
made  therefor,  when  such  compensation  is  not  made  by  the  state, 
shall  be  ascertained  by  a  jury,  or  by  not  less  than  tliree  commis- 
sioners appointed  by  a  court  of  record,  as  shall  be  prescribed  by 
law.  c 

Tliis  constitutional  restriction  in  favor  of  the  individual  is  so  con- 
trolling, that  the  power  to  take  his  property  cannot  be  exercised, 
unless  the  provision  for  compensation  be  made.  Tliis  right  of  the 
individual  is  regarded  as  so  sacred,  that  a  court  of  equity  will  in- 
terpose by  way  of  injunction  to  restrain  action  under  a  statute  to 
take  such  property  that  makes  no  provision  for  compensation,  d 
Such  an  act  would  be  pronounced  unconstitutional  and  void,  e 

n  lloclgers  v. '  Braclshaw,  20  Johu.  735. 
b  Const,  of  1816,  Art.  1,  §  G. 
c  IcL,  Art.  1,  §  7. 

d  Gardner  v.  Trustees  of  Newburgb,  2  John.  Ch.  1G2. 

e  Perry  V.  Wilson,  7  Mass.  E.  395;  Stevens  v.  Middlesex  Canal,  12id.4G8; 
Thatcher  v.  Dartmouth  Bridge,  18  Tick.  E.  501. 


388  THE  EIGHT  OF  EMINENT  DOMAIN. 

It  seems  however,  that  if  the  statute  which  authorizes  the 
taking,  in  itscK,  provides  a  certain  and  adequate  remedy  for  the 
payment  of  dairiages  or  compensation,  that  it  is  not  absokitely 
necessary  that  the  amount  of  compensation  should  be  actually 
ascertained  and  paid  before  such  property  can  be  taken  and  ap- 
propriated to  public  use.  a 

The  settled  doctrine  in  this  state,  as  far  as  it  is  expressed,  is 
found  in  the  case  of  Bloodgood  against  The  Mohawk  and  Hudson 
Eailroad  Company,  decided  in  its  highest  court,  the  court  for  the 
correction  of  errors  ;  and  reported  in  18  Wend.  E.  pp.  9  to  77. 
The  importance  of  the  rule  settled  in  this  case,  as  the  law  of  this 
state,  will  excuse  a  liberal  citation  from  it.  The  plaintiff  declared 
in  trespass  qnare  dausumf regit,  alledghig  that  the  defendants,  by 
their  servants,  entered  his  closes,  with  carriages,  <fcc.,  and  broke 
down,  and  destroyed  his  fences,  and  dug  and  subverted  the  soil, 
&c.  The  defendants  justified  under  their  act  of  incorporation  by 
the  legislature  of  the  state,  which  authorized  them  by  their  agents, 
mrveyors  and  engmeers,  to  cause  such  examinations  and  surveys 
to  be  made,  between  certain  points,  (which  included  the  hue  over 
jhc  plaintiff's  lands,)  as  should  be  necessary  to  determine  the  most 
advantageous  route,  jilace  or  places  whereon  to  construct  their 
railway ;  and  made  it  lawful  for  the  defendants  to  enter  upon,  and 
take  possession,  and  use,  all  such  lands  and  real  estate  as  might  be 
indispensable  for  tlie  construction  and  maintenance  of  their  rail- 
way, and  the  accommodations  requisite  and  appertaining  to  them. 
Provided  that  all  lands  or  real  estate  thus  entered  and  taken  pos- 
session of  by  the  defendants,  (which  are  not  donations)  should  be 
purchased  by  the  defendants  of  the  owner  or  owners  at  a  price  to  be 
mutually  agreed  upon  betwixt  them,  and  in  case  of  disagreement 
of  the  price,  it  should  be  the  duty  of  the  governor  of  the  state  to 
appomt  three  commissioners,  &c.,  to  determine  the  damages,  &c.; 
and  then  stating  how  the  act  provided  for  the  manner  of  assessing 
and  paying  such  damages,  and  further  pleaded,  that  they  entered 
the  plaintiff's  said  closes,  and  for  the  purpose  of  causing  such 
examinations  and  surveys  to  be  made  as  might  be  necessary  to 
determine  the  most  advantageous  route,  tfec,  for  said  railroad,  and 
for  the  purpose  of  taking  possession  of  and  using  so  much  of  such 

a  Rodgers  v.  Bradsliaw,  20  Jolin.  735,  711,  745. 


THE  RIGHT  OF  EMINENT  DOMAIN.  389 

closes  as  miglit  be  indispensable  for  the  construction,  &c.,  of  their 
railway  and  accommodations  requisite,  and  appertaining  to  them, 
and  did  then  and  there  take  possession  for  such  purpose,  -svhich 
were  the  said  supposed  trespasses.  To  which  answer  tliere  was 
a  demurrer  and  joinder.  Chancellor  Walwortli,  'wlio  delivered  the 
leading  opinion  of  the  court,  laid  down  the  law  as  follows:  "It 
ccrtainl}^  was  not  the  intention  of  tlie  framers  of  the  constitution 
to  authorize  the  i:>roperty  of  a  citizen  to  l)c  taken  and  actually 
appropriated  to  the  public  use,  and  thus  to  compel  him  to  ti-ust  to 
the  future  justice  of  the  legislature  to  provide  him  a  compensation 
tJiorefor.  The  compensation  must  be  either  ascertained  and  paid 
him  before  his  property  is  thus  appropriated,  or  an  appropriate 
remedy  uuist  be  provided,  and  upon  an  adequate  fund,  whereby 
he  may  obtain  such  compensation,  through  the  medium  of  the 
courts  of  justice,  if  those  whose  duty  it  is  to  make  such  compen- 
sation refuse  to  do  so."  He  adds,  "  In  the  ordinary  case  of  lands 
taken  for  the  making  of  highways,  or  for  the  use  of  the  state  canal, 
such  a  remedy  is  provided ;  and  if  tlio  town,  county,  or  state  offi- 
cers refuse  to  do  their  duty  in  ascertaining,  raising  or  paying  such 
compensation  in  the  mode  prescribed  by  law,  the  owner  of  the 
ju'operty  has  a  remedy  by  mandamus  to  comjDel  them  to  perform 
their  duty.  The  public  purse,  or  the  propert}^  of  the  town  or 
county  upon  which  the  assessment  is  to  be  made,  may  justly  be 
considered  an  adequate  fund.  He  has  no  such  remedy,  however, 
against  the  legislature  to  compel  the  passage  of  the  necessary 
laws  to  ascertain  the  amount  of  compensation  he  is  to  receive,  or 
the  fund  out  of  whicli  he  is  to  be  paid."  A  very  able,  profound, 
abstract,  and  somewhat  theoretical,  but  argumentative  opinion  was 
delivered  in  the  case  by  Senator  All)crt  H.  Tracy,  in  which  the 
Avhole  doctrine  relating  to  this  subject,  draAvn  as  well  from  the 
natural  rights  of  individuals,  as  fi'om  constitutional  authority,  and 
the  extent  of  legislative  power,  was  most  learnedly  discussed,  the 
whole  of  which"  is  worthy  of  being  transcribed,  and  peipietuated  in 
this,  and  every  other  work  upon  natural  rights  or  constitutional 
limitations  of  legislative  power,  but  its  length  forbids.  No  lawyer 
should  omit  to  read  it,  who  seeks  to  possess  his  mind  Avitli  a  know- 
ledge of  this  branch  of  law. 

At  the  close  of  the  case,  the  court  passed  a  resolution  which 


390  THE   EIGHT   OF  EMKEKT  DOMAIN. 

may  be  quoted  as  the  summary  of  the  doctrine  discussed  in  that 
case,  and  -vshich  remains  the  unimpaired  and  unshaken  law  of  this 
state ;  which  was  in  substance,  "  that  the  legislature  of  this  state 
have  the  constitutional  power  to  authorize  the  taking  of  private 
property  for  the  purpose  of  making  railroads  or  other  public  im- 
provements of  the  like  nature,  whether  such  improvements  be 
made  by  the  state  itself,  or  through  the  medium  of  a  corporation, 
or  joiut  stock  company,  on  making  ample  provision  for  just  com- 
pensation for  the  property  taken  to  the  owners  thereof." 

This  provision  for  just  compensation,  it  is  seen,  is  the  primary 
requisite  to  the  appropriation  of  lands  for  pubhc  purposes  under 
the  right  of  eminent  domain ;  and  the  courts  have  been  quite  uni- 
form in  holding,  that  this  compensation  must  be  pecuniary  in  its 
character,  without  allowances  for  supposed  benefits  to  the  pro- 
jirietor,  for  in  effect,  it  amounts  to  a  power  to  compel  the  indi- 
^idual  to  convey,  even  against  his  will,  when  the  public  necessities 
requhe  it.  ^  This  is  a  right,  wliich  a  magnanimous  and  just  gov- 
ernment will  therefore  never  exercise  without  amply  indemnif}'ing 
the  individual,  a 

This  is  doubtless  the  true  nde,  where  the  whole  of  a  man's 
estate  is  taken,  although  he  may  own  other  estate  in  the  vicinity 
which  may  be  benefited  by  the  public  use ;  for  the  benefits  or 
injuries  which  the  owner  receives  or  sustains  to  other  property  in 
common  with  the  community  generally,  and  which  are  not  pecu- 
liar to  him,  and  connected  with  his  ownership,  use,  and  enjoy- 
ment of  the  particular  parcel  of  land,  should  be  excluded  alto- 
gether, as  it  would  be  unjust  to  compensate  him  for  the  one,  or  to 
charge  him  with  the  other,  when  no  account  is  taken  of  such  inci- 
dental benefits,  and  injuries  with  other  citizens  who  receive  or  feel 
them  equally  with  himself,  but  whose  lands  do  not  chance  to  be  taken. 

a  Fletcher  v.  Peck,  G  Crancli.  14o;  Bradshaw  v.  Kodgers,  20  John.  10-4. 

Note  2. — "Thejiist  compensation  to  the  owner  for  taking»his  property  for 
public  uses  without  his  consent,  it  has  been  held,  means  the  actual  value  of  the 
property  in  money,  without  any  deduction  for  estimated  profit  or  advantages  ac- 
cruing to  the  owner  from  the  public  use  of  his  propertj'.  Speculative  advan- 
tages or  disadvantages,  independent  of  the  intrinsic  value  of  the  propertj^  from 
the  improvement,  are  a  matter  of  set  off  against  each  other,  and  do  not  aflect  the 
dry  claim  for  the  intrinsic  value  of  the  property  taken."  Jacob  v.  City  of  Louis- 
ville, 9  Dana,  E.  114;  Van  Home's  Lessees  v.  Dorrance,  2  Dall.  315. 


THE  EIGHT   OF  EMINENT  DOMAIN.  391 

But  where  less  tlian  the  -whole  lot  or  estate  is  taken,  there 
is  a  class  of  cases  that  hold  the  rule  to  be  in  assessing  the 
damages,  to  take  into  consideration  how  much  the  portion  not 
taken  is  increased  or  diminished  in  value  in  consoquenet!  of  the 
appropriation.  (/  "The  owner  of  tho  property  is  entitled  to  full 
compensation  for  the  damages  he  sustains  therel)y ;  but  if  tho 
taldng  of  a  part  of  his  property  for  the  public  improvement  is  a 
benefit  rather  than  an  injury  to  him,  he  certainly  has  no  equitable 
claim  to  damages."  h  If  the  same  property  tliat  remains,  will  be 
more  valuable  when  the  improvement  is  made,  than  the  Avhole  of  it 
was  before,  the  owner  will  not  sustain  any  damage,  but  will  derive 
a  benefit  fi'om  it. 

The  time  when  this  compensation  must  bo  made,  is  not  fixed  in 
the  constitution  of  this  state  itself,  nor  m  the  federal  constitution ; 
but  in  some  of  the  states,  provision  is  made  in  their  constitutions, 
that  compensation  must  be  made  before  the  property  is  taken. 

It  has  been  held  in  this  state,  in  efiect,  that  no  constitutional 
piinciple  was  violated  by  a  statute  that  allowed  private  property 
to  be  entered  upon  temporarily,  for  the  purpose  of  making  a  sur- 
vey for  a  state  appropriation,  with  a  view  of  determining  the  proper 
location  of  a  canal ;  and  that  for  such  a  purpose,  the  state  was  not 
bound  to  make  compensation,  nor  were  its  subordinate  ofiicers, 
who  so  entered,  liable  to  an  action  of  trespass,  a 

A  distinction  is  fomid  in  the  books,  which  seems  to  have  been 
recognized,  as  settled,  between  property  taken  directly  by  the  state, 
or  a  municipal  coq^oration  by  state  authority,  and  cases  Avhere  it 
is  taken  by  a  private  corporation,  which,  for  this  pui'pose,  is 
clothed  with  the  power  to  take,  and  regarded  as  a  public  agent, 
if  the  property  is  to  be  appropriated,  for  the  benefit  and  profit  of 
its  members.  If  taken  directly  by  tho  state,  it  is  not  essential  to 
the  vahdity  of  the  law,  that  it  should  provide  for  makmg  compen- 
sation before  the  actual  appropriation ;  it  is  suflicient,  if  provision 
is  made  in  the  law,  by  which,  the  party  can  obtain  certain  com- 

a  Livfugstou  v.  The  Mayor  of  Xew  York,  8  Wcud.  101;  In  the  Matter  of  Fur- 
man  Street,  17  Wend.  671;  Parks  v.  Boston,  15  Pick.  205. 

h  Id.,  and  McMasters  t.  Commonwealth,  3  "Watts.  (Penn.)  E.  296. 

a  Bloodgood  v.  M.  &  H.  RR.  Co.,  14  Wend.  51,  &  18  Wend.  9;  Gardner  v.  N^w- 
burgh,  2  John.  Ch.  168. 


392  THE  EIGHT  OF  EMKENT  DOMAIN. 

pensation,  and  a  proper  tribunal  is  provided  for  determining  it.  a 
A  very  good  reason  obtains,  why  the  rule  should  be  different  in 
cases  where  individuals,  or  private  corporations,  are  authorized  to 
take  even  for  public  pui-poses.  The  latter,  might  otherwise  get 
possession,  and  despoil  a  party  of  his  estate,  and  then  prove  irre- 
sponsible, by  means  of  which  the  proprietor  might  loose  his  estate 
without  means  of  redi'ess,  and  thus  the  constitutional  protection, 
become  but  a  name  and  a  mockery,  to  the  spirit  and  intent  of  the 
constitution. 

Chancellor  Kent  was  of  opmion,  that  in  all  such  cases,  the  com- 
pensation, or  offer  of  it,  must  precede,  or  be  concurrent  with  the 
seizm"e  and  entry  upon  the  private  property  taken  under  the  au- 
thority of  the  state,  h  "  That  the  government  is  bound  m  such 
cases,  to  provide  some  tribunal  for  the  assessment  of  the  compen- 
pensation  or  indemnity,  before  which,  each  party  may  meet  and 
discuss  their  claims  on  equal  terms  ;  and  that  if  the  government 
proceed  without  taking  these  steps,  their  officers  and  agents  may, 
and  ought  to  bo  sustained  by  injunction."  He  granted  an  injunc- 
tion in  such  case  when  acting  as  Chancellor,  c  and  in  support  of 
his  opinion,  he  cited  the  authorities  of  the  profoundest  writers 
upon  the  ci\il  law,  and  the  law  of  nature,  and  said,  that  this  limi- 
tation of  the  power  existed  before  it  was  incorporated  into  our 
own  constitutions,  was  admitted  by  the  soundest  authorities; 
and  adopted  by  all  temperate  and  civilized  governments,  from  a 
deep  and  universal  sense  of  its  justice,  d 

The  distinction  above  referred  to,  shows,  that  the  rule  in  this 
state,  is  not  universal  nor  inflexible,  inasmuch  as  it  is  neither  a 
constitutional,  or  statute  provision,  that  payment  should  precede, 
or  accompany  the  appropriation,  yet,  we  must  concede,  that  such 
was,  and  is,  the  spirit  of  justice,  and  such,  I  think,  was  natural 
law  before  our  constitution  was  adopted,  which  really,  but  incor- 

c  Bloodgoocl  V.  Mohawk  &  Hudson,  KK.  Co.,  18  Weud.  9;  Kodgers  v.  Bradshaw, 
2  John,  744,  5;  Calkin  v.  Baldwin,  6  Wend.  670;  Rexford  v.  Knight.  11  N.  Y.  313, 
314;  Lyon  v.  Jerome,  2G  Wend.  497;  People  v.  Hay  den,  6  Hill,  359. 

h  2  Com,  330,  Note  C. 

c  Gardner  v.  Village  of  Newburgh,  2  John,  Ch.  1G2. 

d  Grotius  (De  Jur.  B.  &  P.  b.  8,  Ch.  14,  s.  7;)  Puffendorf  (De  Jur.  Nat.  et  Gent, 
b.  8,  Ch.  5,  s.  7;)  Bynkershock,  (Quaest  Jur.  Pub.  b.  2,  Ch.  15.)  Code  Napoleon, 
Art.  545. 


THE   EIGHT   OF  EMINENT  DOMAIN.  393 

porated  into  it,  the  law  of  natui'e.  The  constitutions  of  various  of 
the  states  of  the  Union,  have  adopted  it  as  fundamental  law.  a 

Injuries  done  to  pr()i)erty  not  appropriated,  l)y  the  exertion  of 
this  power  of  resumption  l)y  the  st;ite,  under  the  right  of  eminent 
domain,  it  is  held,  give  no  valid  chum  against  the  state,  or  its 
agents  on  account  of  the  taking.  It  is  perhaps  as  common,  that 
estates  adjoining,  or  in  the  vicinage  of  a  public  improvement,  are 
injuriously  afiected  as  that  they  are  benefited  or  increased  in  value. 
Unless  the  statute  provides  a  relief  in  such  case  to  the  party,  he  is 
remediless.  Every  great  public  improvement,  almost  of  necessity, 
more  or  less  aftects  individual  convenience  and  property,  for  the 
better  or  for  the  worse  ;  if  for  the  worse,  and  the  injury  is  conse- 
quential, or  remote,  it  is  to  be  borne,  as  a  part  of  the  price  Avhich 
the  individual  must  pa}',  for  the  advantages  of  the  social  condition.6 
This  is  founded  upon  the  principle,  that  the  general  good  is  to  pre- 
vail over  partial  individual  convenience.  The  loss  is  damnum 
absque  injuria. 

Upon  the  same  principle;  a  statute  passed  to  regulate  the  use 
of  a  navigable  stream,  which  only  incidentally  affects  the  riparian 
owners,  gives  to  the  person  so  affected,  no  right  to  compensation, 
though  if  the  stream  is  thereby  diverted  from  its  natural  course, 
so  that  those  entitled  to  its  benefits  are  prevpnted  from  using  it  as 
before ;  such  a  deprivation  of  a  right,  is  a  taking,  wliich  entitles  to 
compensation,  notwithstanding  the  taking  may  be  for  the  pui'pose 
of  creating  another  and  more  valuable  channel  of  navigation,  c 
The  owners  of  the  land  over  which  a  stream  flows,  though  they 
do  not  own  the  flowing  water  itseK,  yet  have  a  property  in  the  use 
of  that  water  as  it  flows  past  them,  for  the  purpose  of  producing 
mechanical  power,  or  for  any  other  of  the  pm-poses  for  which  they 
can  make  it  available,  without  depriving  those  below  them  on  the 
stream,  of  the  like  use,  or  encroaching  upon  the  rights  of  those 

oConstitutiou  of  Indiana,  Art.  21,  §  1  ;  Ohio,  Art.  1,  §  19  ;  Kentucky,  Art.  IJ 
§  11  ;  Oregon,  Art.  1,  §  19  ;  Nevada,  Art.  1,  §  8  ;  Mississippi,  Art.  1,  §  13  ;  Min- 
nesota, Art.  1,  §  13  ;  Kansas,  Art.  12,  §  4  ;  Georgia,  Art.  1,  §  17  ;  Florida,  Art.  1, 
§14. 

h  Lansing  v.  Smith,  8  Cow.  149;  Troy  &  Boston  EE.  Co.,  v.  Northern  Turnpika 
Co.,  IGBarb.  100. 

c  People  V.  Canal  Apf)raisers,  13  Wend.  355  ;  Billinger  v.  N.  Y.  Cent.  BE.  Co., 
23  N.  Y.  42. 

50 


3  9  J:  THE  EIGHT  OF  EMINENT  DOMAIN. 

above ;  and  this  propeity  is  eqiially  protected,  with  that  of  a  more 
tangible  character,  a 

In  anotlier  class  of  injuries,  also,  a  party  may  sustain  gi-eat  and 
almost  irreparable  injury,  where  the  law  affords  him  no  redress  ; 
such  for  instance  as  those  resulting  from  the  construction  of  pub- 
he  works,  where,  if  an  injury  occurs  in  a  case  where  the  work  A\as 
constructed  upon  a  proper  plan  and  without  negligence,  and  if  the 
injury  is  caused  by  accidental  and  extraordinary  circumstances, 
the  injured  party  is  without  remedy,  and  can  demand  no  compen- 
sation ;  and  this  is  so,  even  though  the  property  was  appropriated 
under  the  right  of  eminent  domain,  h  But  if  in  such  case,  how- 
ever, there  is  want  of  reasonable  care  and  skill  in  the  construction  of 
such  work,  and  unnecessary  damage  is  caused,  it  is  not  warranted  by 
the  right  of  eminent  domain,  and  then,  the  corporation  or  its  agents 
are  responsible  for  it.  Such  damage  however  must  be  real,  sub- 
stantial and  appreciable,  and  not  merely  theoretical  or  shght,  or 
such  as  may  be  caused  by  an  unusual  or  extraordinary  swell  of 
the  waters,  c 

As  it  is  competent  for  the  state  to  declare  the  extent  of  the  use 
to  which  private  property  is  thus  to  be  taken,  whether  for  a  tem- 
porary period,  for  an  easement,  or  the  entire  fee,  the  amount  of 
compensation  will  of  course  depend  upon  the  character  of  the  de- 
privation, and  the  extent  of  exclusion  of  use  by  the  former  owner, 
so  that  in  all  cases,  where  the  complete  fee  is  not  taken,  the  ori- 
ginal owner  is  vested  with  the  remainder  or  reversion  that  is  left, 
and  whenever  the  public  use  ceases,  or  is  discontinued,  as  a  gen- 
eral rule,  the  estate  reverts  to  the  original  proprietor,  and  he  be- 
comes restored  to  his  complete  and  exclusive  possession.  The 
case  of  common  highways,  is  within  this  class ;  there  the  public 
have  a  pei'petual  easement,  but  the  fee,  and  the  soil,  is  in  the 
original  owner  or  his  assigns,  and  they  may  make  any  use  of  it 
which  does  not  interfere  with  the  public  right  of  passage  over  it, 
and  the  public  can  use  it  for  the  usual  purposes  of  a  highway,  d 
By  special  statutes  however,  in  some  of  the  cities,  the  fee  of  the 

a  Morgan  v.  King,  35  N.  Y.  454;  Cooley  on  Const.  Lim.  557. 
I  Perry  v.  City  of  Worcester,  G  Gray,  546-7,  and  cases  cited;  Sprague  v.  The 
Same,  15  Gray,  195.  c  Id. 

d  Adams  v.  Eivers,  11  Barb.  390;  Cooley  on  Const.  Lim.  558. 


DUE  PEOCESS  OF  LAW.  395 

streets  is  in  the  city  absolutely  ;  so  in  like  cases,  appropriations 
for  alms-houses,  canals,  &c.  a 

Tlie  constitution  of  this  state,  though  it  authorizes  the  appro- 
priation of  private  property  to  public  uses,  upon  the  condition  of 
just  compensation  to  the  proprietor,  has  afforded  to  the  indiAadual 
owner,  a  still  further  protection  against  legislative  abuse,  and 
as  a  hmitation  upon  the  poAver  to  take.  It  declares  that  no  mem- 
ber of  this  state  shall  be  disfi'anchised  or  deprived  of  any  of  the 
rights  or  privileges  secured  to  any  of  the  citizens  thereof,  unless 
by  the  law  of  the  land,  or  the  judgment  of  his  peers."  h 

It  pro\ides  also,  not  only,  that  he  shall  receive  a  just  compensa- 
tion, but  also  that  he  shall  not  be  deprived  of  his  property  "  icitlt- 
out  due  2^roccss  of  laic,''  and,  that  in  cases  where  the  compensation 
is  not  made  by  the  state,  it  shall  be  ascertained  by  a  jury,  or  by 
not  less  than  three  commissioners  appointed  by  a  court  of  record, 
as  shall  be  prescribed  by  law.  <■ 

What  is  "  the  law  of  the  land."  and  "  due  process  of  law,"  had 
well  deiSned  common  law  meanings,  before  the  adoption  of  this 
constitution,  and  nuist  be  regarded  as  but  slightly  qualified  by  the 
tenus  of  the  constitution  itself. 

Chancellor  Kent  says,  the  words,  hy  the  laiv  of  the  land,  as  used 
originally  in  3Iagna  Charta  in  reference  to  this  subject,  are  un- 
derstood to  mean,  "  due  process  of  laic,"  d  and,  that  the  better  and 
larger  definition  of  due  irrocess  of  law,  is,  that  it  means  law,  in  its 
regular  course  of  administration.  And  it  was  held  in  the  court  of 
appeals  of  this  state,  e  that  these  constitutional  safeguards,  in  all 
cases,  require  a  judicial  investigation ;  not  to  be  governed  by  a 
law  specially  enacted  to  take  away  and  destroy  existing  rights,  but 
confined  to  the  question,  whether  under  the  pre-existing  rule  of 
conduct,  the  right  in  controversey  has  been  lawfully  acquu-ed,  and 
is  lawfully  possessed.  So  Lord  Coke  interprets,  "  hy  the  law  of 
Hie  land,"  to  mean,  "  by  the  duo  course  and  process  of  the  law."/ 

a  Hey\7ard  v.  Mayor  of  New  York,  7  N.  Y.  E.  314;  Baker  v.  Johnson,  2  Hill, 
348;  Eexford  v.  Knight,  11  N.  Y.  R.  308;  Hunger  v.  Tonawanda  B.  E.  Co.,  4  N. 
Y.  349. 

b  Const,  of  N.  Y.  of  1846,  Art.  1,  §  1. 

c  Const,  of  N.  Y.  of  1846,  Art.  1,  §  7.  d  2  Com.  13. 

fi  Wyndham  v.  The  People,  13  N.  Y.  E.  395. 

/2  Inst.  46. 


39G  DUE  TROCESS  OF  LAW. 

And  the  courts  of  this  state  hold,  that  the  words,  "  due  process  of 
hiw,"  import  a  judicial  trial,  and  not  a  mere  declaration  of  the 
legislative  will  by  the  passing  of  a  law.  a  It  is  therefore  regarded 
as  safe  to  say,  "  that  without  due  process  of  law,  that  is,  without 
judicial  investigation,  no  act  of  legislation  can  deprive  a  man  of 
his  property,  and  that  in  all  civil  cases,  an  act  of  the  legislature 
alone,  is  wholly  inoperative  to  take  from  a  man  his  property." 

These  provisions  in  substance,  or  in  equivalent  language,  will  be 
found  in  nearly  every  state  constitution.  They  were  rights  that 
existed  and  attached  to  every  citizen  at  common  law,  before  the 
adoption  of  state  constitutions ;  they  can  be  traced  back  to  3Iagna 
Chart  a,  and  were  wrested  from  the  king,  as  restraints  upon  the 
power  of  the  crown.  They  were  imposed  by  the  people  as  re- 
straints upon  the  legislative  power  when  they  put  forth  their  con- 
stitutions. 

The  concurrent  adoption  of  these  protective  individual  rights  by 
nearly  every  state  in  the  Union,  and  by  the  employment  of  nearly 
the  same  language,  is  evidence  of  the  uniformity  and  extent  of 
the  constraction  we  have  given. '     The  constitution  of  this  state, . 

a  Taylor  v.  Porter,  4  Hill,  1-10;  Embury  v.  Conner,  3  N.  Y.  E.  511;  "Westervelt 
V.  Gregg,  G  N.  Y.  R.  202. 

Note  3. — The  provision  in  the  constitution  of  Alabama,  is,  "That  in  all  the 
criminal  prosecutions,  the  accused  shall  not  be  compelled  to  give  evidence 
against  himself,  nor  be  deprived  of  life,  liberty,  or  property,  but  by  due  course  of 
law,"  Art  1.  §  7.  Arkansas,  "  That  no  man  shall  be  taken  or  imprisoned,  or  dis- 
seized of  his  freehold  liberties,  or  privileges,  or  outlawed  or  exiled,  or  in  any  man- 
ner destroyed,  or  deprived  of  his  life,  liberty  or  property,  but  by  the  judgment  of 
his  peers,  or  the  law  of  the  land.  Art  2.  §  10.  California,  like  Alabama,  except  the 
words  process  of  law,  instead  of  course  of  law,  Art  1,  §  8.  Connecticut,  same  as 
Alabama,  Art  1,  §  9.  Delaicare,  substituting  for  the  words,  "course  of  law,"  "  the 
judgment  of  his  peers  or  the  law  of  the  land,"  Art.  1,  §7.  Florida,  "  that  no  freeman 
shall  be  taken,  imprisoned  or  disseized  of  his  freehold  libei-ties  or  privileges,  or, 
outlawed  or  exiled,  or  in  any  manner  desti'oyed,  or  deprived  of  his  life,  liberty  or 
property,  hut  by  the  law  of  the  land,"  Art.  1,  §  8.  Georgia,  "No  person  shall  be  de- 
prived of  life,  liberty,  or  property,  exeept  by  due  process  of  law,"  Art.  1,  §  2.  Illi, 
7iois,  "  That  no  freeman  shall  be  imprisoned,  or  dissiezed  of  his  freehold  liberties 
or  privileges,  or  outlawed  or  exiled,  or  in  any  manner  deprived  of  life,  liberty  or 
property,  but  hy  the  judgment  of  his  peers  or  the  law  of  the  land,"  Art.  13,  §  8.  Iowa, 
"No  person  shall  be  deprived  of  life,  liberty  or  property,  wt</iOuf  due  process  of  law,' 
Art.  1,  §  9.  Kentucky,  "  Nor  can  he  be  deprived  of  his  life,  liberty  or  property, 
unless  by  the  judgment  of  his  peers,  or  tJce  law  of  the  land,"  Art.  13,  §  12.  Maine,  "Nor 
be  deprived  of  his  life,  liberty,  property  or  privileges,  but  by  the  judgment  of  his 


DUE   TROCESS   OF  LAW.  397 

of  1846,  has  some  qualifying  provisions,  as  to  the  tribunal  or  forum, 
in  •which,  the  value  of  these  private  interests  taken  for  public  use, 
shall  be  assessed.  It  has  been  claimed,  that  the  right  of  trial  I)}' 
a  common  law  jury  of  twelve  men  in  all  cases,  is  a  constitutional 
light  to  the  propiietor,  of  which  he  cannot  be  deprived,  under  the 
second  section  of  the  first  article  of  the  constitution  of  1840,  which 
declares,  that  "the  trial  by  jury  in  all  cases  in  which  it  has  been 
heretofore  used,  shall  remain  inviolate  forever." 

This  section,  however,  has  had  judicial  construction  by  the  court 
of  appeals,  in  this  state,  a  It  was  there  held,  that  inasmuch,  as 
for  a  period  of  twenty  years  preceding  the  adoption  of  that  constitu- 
tion, special  juries  had  been  drawn  with  reference  to  the  apprais- 

o  Cnigtr  V.  The  Ilml.  It.  11.  Co.,  12  N.  Y.  198. 

peers,  or  the  hiw  of  the  land,"  Art.  1,  §  6.  Maryland,  "That  no  man  ought  to  be 
taken  or  imprisoned,  or  disseized  of  his  freehold  liberties  or  privileges,  or  outlawed 
or  exiled,  or  in  any  manner  destroyed  or  deprived  of  his  life,  liberty  or  property, 
but  by  the  jud(jment  of  his  peers,  or  by  (lie  laic  of  fheland,"  Declaration  of  Rights,  §  23. 
Massachusetts,  "No  subject  shall  be  arrested,  imprisoned,  despoiled,  or  de- 
prived of  his  i^roperty,  immunities  or  privileges,  put  out  of  the  protection  of  the 
law,  exiled  or  deprived  of  his  life,  liberty  or  estate,  but  by  the  judgment  of  his 
peers,  or  the  law  of  land,"  Declaration  of  Eights,  Art.  12.  Michigan,  "No  person 
shall  be  deprived  of  life,  liberty,  or  property,  without  due  process  of  laic,"  Art.  6  §  32. 
Minnesota,  "  No  member  of  this  state  shall  be  disfranchised,  or  deprived  of  any 
of  the  rights  or  privileges  secured  to  any  citizen  thereof,  unless  by  the  law  of  the 
land,  or  the  judgment  of  his  peers,''  Art.  1,  §  2.  Mississippi,  "Nor  can  he  be  de- 
prived of  his  liberty  or  property,  but  by  due  course  of  law,"  Art.  1,  ^5  10.  Mis- 
souri, same  as  Delaware,  Art.  1,  §  18.  Xevada,  "Nor  be  deprived  of  life,  liberty 
or  property,  icithout  due  process  of  law,  Art.  1,  §  8.  Xeio  Hampshire,  same  as  Mas- 
sachusetts, Bill  of  Eights,  §  17.  Xorth  Carolina,  "That  no  freeman  ought  to  be 
taken,  imprisoned  or  disseized  of  his  freehold  liberties  or  privileges,  or  outlawed 
or  exiled,  or  in  any  manner  destroyed,  or  deprived  of  his  life,  liberty  or  property, 
but  by  the  law  of  theland,"  Declaration  of  Eights,  §12.  Pennsylvania,  like  Delaware, 
Art.  9,  §  9.  I\hode  Island,  like  Delaware,  Art.  1,  §  10.  Soidh  Carolina,  "No  per- 
son shall  be  taken,  imprisoned  or  dissiezed  of  his  freehold  liberties  or  privileges, 
or  outlawed  or  exiled,  or  in  any  manner  deprived  of  his  life,  liberty  or  property, 
but  by  due  process  of  law,"  Art.  9,  §  2.  Tennessee,  same  as  Florida,  Art.  1,  ^  8. 
7e.ra,v,  "  No  citizen  of  this  state  shall  be  deprived  of  life,  liberty,  property  or 
privileges,  outlawed,  exiled,  or  in  any  manner  disfranchised,  excepA  by  due  course 
if  law,"  Art.  §  16.  West  Virginia,  "No  person  in  time  of  peace  shall  be  deprived 
of  life,  liberty  or  property,  without  due  process  of  law,"  Art.  2,  §  6.  In  the  consti- 
tutions of  the  remaining  states,  it  is  believed,  that  the  protective  phrases  are  omit- 
ted, but  that  equivalent  protection  is  afforded  by  the  statutes  and  common  law.  * 

*  Cooley  on  Const.  Lim.  note  to  p.  351. 


398  DUE  PROCESS  OF  LAW. 

ment  of  damages  in  sucli  cases,  and  that  "the  term  jury  seemed  to 
have  been  used  in  such  proceedings  as  descriptive  of  the  civil  con- 
dition of  the  persons  composing  it,  and  by  way  of  distinguishing 
between  such  a  body  of  jurymen,  and  commissioners  ajipointed  by 
courts  under  other  acts,  to  perform  the  same  functions ;  they  are 
called  in  such  special  acts  sometimes  as  jurors,  and  sometimes  as 
appraisers,  or  jury  of  appraisers,  a  majority  of  whom  could  make 
the  certificate,  of  inquisition  or  appraisal,  that  the  instances  of  such 
appraisal,  prior  the  time  of  the  convention  who  framed  the  con- 
stitution of  184G,  was  sufficient  to  estabhsh  the  position,  that  the 
term  Jury,  in  those  acts,  did  not  necessaiily  import  a  tribunal  con- 
sisting of  twelve  men  acting  only  upon  a  unanimous  determina- 
tion, but  on  the  contrary  was  used  to  describe  a  body  of  jurors, 
difi'ering  in  numbers,  and  deciding  by  majorities,  or  otherwise,  as 
the  legislatm-e  in  each  instance  directed. 

The  term  jury,  as  used  in  those  special  statutes,  it  was  held, 
was  used  in  a  sense  in  which  it  was  known  to  the  law,  at  the  time 
of  forming  that  constitution,  as  one  of  the  modes  of  j^roceeding 
theretofore  in  use  in  taking  private  property.  The  other  mode 
being  that  of  appraisement  by  commissioners.  These  two  modes 
had  then  been  in  use,  and  had  been  regarded  as  well  calculated  to 
secure  both  public  and  private  rights.  The  term  jury,  therefore, 
when  used  in  reference  to  the  assessment  of  damages  for  takiug 
private  proj)erty,  was  not  used  in  the  common  law,  or  the  restricted 
meaning  which  belongs  to  it  when  used  in  reference  to  trials  civil, 
or  criminal ;  but  in  the  broader  sense  which  it  had  acquired  in 
common  use,  under  legislative  acts,  a  This  is  the  more  obvious, 
from  that  other  provision  contained  in  the  seventh  section  of  the 
same  article  of  this  constitution  before  cited,  that  in  such  cases, 
the  compensation  "  shall  be  ascertained  by  a  jury,  or  by  not  less 
than  three  commissioners  appointed  by  a  court  of  record,  as  shall 
be  prescribed  by  law." 

Tliis  being  the  adjudication  of  the  highest  court  of  the  state  in 
giving  construction  to  a  statute  of  the  legislature,  and  in  effect 
giving  judicial  construction  to  the  fundamental  law  made  by  the 
people  themselves,  and  under  which  the  legislature  receive  their 
authority  to  enact  the  law,  we  must  regard   this  mode  of  ascer- 

a  Id.  2()0. 


DUE  PROCESS  OF  L.VW.  399 

taming  compensation,  to  bo  in  accordance  with  the  "  law  of  the 
land,"  as  secured  to  the  citizen  by  the  constitution ;  and  this  must 
also  be,  "by  due  process  of  law,"  "being  a  prosecution  or  suit  in- 
stituted and  conducted  in  the  courts  according  to  the  prescribed 
forms  and  solemnities  for  determining  the  just  compensation  to  be 
paid  for  private  property  taken  for  public  use,"  under  the  authority 
conferred  by  the  people  upon  the  legislature,  and  in  the  constitution 
adopted  by  themselves,  whereby  they  intended,  not  to  destroy, 
but  to  secure  the  individual  citizen  from  the  arbitrary  exercise  of 
the  powers  of  govcn-ninent,  unrestrained  by  the  established  prin- 
ciples of  private  rights,  and  distributive  justice. 

It  must  be  conceeded,  that  this  conclusion  has  not  been  arrived 
at  without  its  having  received  the  most  deliberate  consideration  of 
the  courts,  after  years  of  straggle,  and  by  a  divided  opinion,  a 
There  was  a  strong  disposition,  on  the  part  of  judges,  to  interpose 
the  judicial  department  of  the  government  as  a  barrier  against 
aggi'essions  of  the  other  departments,  and  to  hold  that  the  citizen 
could  only  be  seciu-ed  in  his  property,  by  a  judicial  trial,  and  by  a 
common  law  jury  of  twelve  men,  whose  unanimous  verdict  should 
be  had  in  the  case. 

But  the  wants  of  the  public,  stimulated  by  the  progi'essive 
spiiit  of  the  age,  upon  the  one  hand,  and  the  obstractions  w^hicli 
a  spirit  of  avarice,  by  individuals,  interposed  upon  the  other,  ren- 
dered such  a  restriction  impracticable,  and  it  was  seen,  that  it  was 
the  remedy,  and  not  the  right,  w^liich  was  really  the  question  to  be 
settled,  and  it  was  hardly  doubtful  that  the  forms  of  administering 
justice,  and  the  duties  and  powers  of  courts  in  relation  thereto, 
Avere  incidents  to  a  branch  of  the  sovereign  power,  and  that  these 
must  be  subject  to  the  legislative  will.  It  therefore  become  nec- 
essary to  constitute  particular  tribunals  for  the  adjustment  of  such 
controversies,  bringing  the  parties  to  submit  themselves  to  the 
exercise  of  more  summary  remedies  in  this  regard.  There  is  no 
perceptible  reason,  why  private  rights  may  not  bo  as  well  protected 
under  the  one  system  as  the  other,  both  being  under  the  protection 
of  judicial  proceedings  in  the  courts,  and  controlled  by  rules  equally 
impartial  in  their  application. 

a  See  Cases  of  Hoke  v.  Hendersou,  4  Dev.  (Maryland  E.)  1;  Joucs  v.  Terry,  10 
Yerg.  E.  59;  Embury  v.  Conner,  3  N.  Y.  511;  Taylor  v.  Porter,  4  Hill,  UO. 


400  DUE  rEOCESS  OF  LAW. 

Besides,  "  the  rigid  to  a  particular  remedy  is  not  a  vested  right." 
This  is  the  general  rule ;  and  the  exceptions  are  of  those  peculiar 
cases  where  the  remedy  is  a  part  of  the  right  itself.  As  a  general 
rule,  every  state  has  complete  control  over  the  remedies  which  it 
shall  afford  to  the  parties  in  its  courts,  a  When  not  restricted  by 
the  constitution,  it  may  abolish  one  class  of  courts  and  create 
another,  h  and  it  may  abohsh  old  remedies,  and  substitute  new. 
And  any  rule  or  regulation  in  regard  to  the  remedy,  which  does 
not,  under  pretence  of  regulatmg  it,  impair  the  right  itself,  cannot 
be  regarded  as  beyond  the  proper  province  of  legislation,  c 

There  must  not  be  a  confounding  of  the  taxing  power,  under 
which  property  is  taken  for  pubhc  use,  with  the  right  of  eminent 
domain.  The  clause  in  the  constitution  of  the  United  States  that 
private  property  shall  not  be  taken  for  public  use  without  just 
compensation,  applies  to  the  right  of  eminent  domain,  and  has  no 
reference  to  property  taken  for  taxes,  d, 

This  provision  of  the  constitution  is  intended  solely  as  a  limita- 
tion on  the  exercise  of  power  by  the  government  of  the  United 
States,  and  is  not  apphcable  to  the  legislation  of  the  states,  e  The 
constitution  of  the  United  States  was  ordained  and  estabhshed  by 
the  people  of  the  United  States,  for  themselves,  for  their  own  gov- 
ernment, and  not  for  the  government  of  the  individual  states. 
Each  state  established  a  constitution  for  itself,  and  in  that  con- 
stitution, provided  such  Hmitations  and  restrictions  on  the  powers 
of  its  particular  government  as  its  judgment  dictated.  Therefore, 
when  the  constitution  of  a  state  provides  that  private  x)roperty 
shall  not  be  taken  for  public  uses,  and  the  highest  court  of  such 
state  has  sustained  the  validity  of  a  law  which  violates  this  con- 
stitutional provision,  the  courts  of  the  United  States  have  nothing 
to  do  with  it. 

a  Lord  v.  Chadbourn,  i2  Maine  E.  429;  Eosier  v.  Hale,  10 Iowa  470;  Holloway 
V.  Sherman,  12  Iowa  282;  McCormick  v.  Eusch,  15  Io\s'a  127;  Eockwell  v.  Hub- 
bell,  2  Doug.  (Mich.)  197;  Cusirv.  Douglass,  3  Kansas  123;  Smith  v.  Bryan,  34 
Illinois  377. 

6  Foster  V.  Essex  Bank,  16  Mass.  245,  272;  Hampden  v.  Commissioners,  &c.,  6 
Pick.  508;  In  Bank,  16  Ohio  354-5;  Hepburn  v.  Curts,  7  Walts.  300. 

c  Cooley  on  Const.  Limits,  361,  362.      d  Howell  v.  City  of  Buffalo,  37  N.Y.  270. 

e  Barron  v.  Mayor  of  Baltimore,  7  Peters,  243;  Withers  v.  Buckley,  20  How.  U. 
S.  E.  84. 


DUE  PKOCESS  OF  LAW.  lOl 

Taking  lands  for  widening  of  a  street,  with  a  restriction  on  ad- 
joining land,  wliicli  may  be  used  for  the  purpose  of  extending 
court  yards,  is  the  taking  for  public  use,  and  entitles  the  proprie- 
tors to  an  aAvard  of  damages.  In  such  case,  dominion  is  asserted 
over  the  land  by  the  public,  to  the  extent  of  depriving  the  owner 
of  his  right  to  enjoy  it  for  any  other  pui-pose  than  as  a  court 
3'ard.  a 

a  Matter  of  Busliwick  Avenue,  48  Barb.  9. 

51 


.102  THE  TAXING  TOWER. 


CHAPTER   XII. 

OF  THE  CONSTITUTIONAL  AUTHOEITY  TO  TAKE  PEIVATE  PEOPEETY 
FOE  PUBLIC  PUEPOSES  UNDEE  THE  TAXING  POWEE. 

In  the  preceding  chapter  we  have  taken  a  survey  of  the  power 
to  take  private  property  for  piibhc  uses  under  the  right  of  eminent 
domain,  notwithstanding  the  constitutional  prohibitions  contained 
in  the  federal  and  state  constitutions.  In  this  chapter  we  propose 
to  take  a  biief  view  of,  and  to  bestow  a  few  considerations  upon 
the  nature,  extent  and  power  to  take  private  property  for  public 
tises  under  the  taxing  power  of  the  constitution  itself,  and  of  both 
the  federal  and  state  constitutions. 

The  right  of  acquiring  and  possessing  property,  and  having  it 
protected,  is  one  of  the  natural,  inherent,  and  inalienable  rights  of 
man.  Men  have  a  sense  of  property  ;  it  is  necessary  to  their  sub- 
sistence, and  correspondent  to  their  natural  wants  and  desires ; 
its  security  was  one  of  the  objects  that  induced  them  to  imite  in 
society.  No  man  would  become  a  member  of  community,  in 
which  he  could  not  enjoy  the  fruits  of  his  honest  labor  and  indus- 
irj.  The  preservation  of  property  is  one  primary  object  of  the 
social  compact,  and  it  is  by  the  constitution  made  a  fundamental 
law.  But  still,  every  person  ought  to  contribute  his  proportion  to 
the  pubhc  burthens,  to  public  purposes,  and  to  the  public  exigen- 
cies, though  no  one  can  j)roperly  be  called  upon  to  surrender  or 
sacrifice  his  whole  property,  real  and  personal,  for  the  good  of  the 
community,  without  receiving  a  recompense  in  value.  This  would 
be  laying  a  burthen  upon  an  individual,  which  ought  to  be  sus- 
tained by  the  societ}'  at  large.  Such  an  act,  if  attempted,  would 
be  monstrous  legislation,  and  would  shock  all  mankind.  Nor  can 
the  legislature  divest  one  citizen  of  his  estate  and  vest  it  in  an- 
other, with  or  without  compensation.  It  is  inconsistent  with  the 
principles  of  reason,  justice,  and  moral  rectitude ;  it  is  incompatible 
with  the  comfort,  peace  and  happiness  of  mankuid ; — it  is  contrary 


THE  TAXING  POWEi:.  403 

to  tlie  principles  of  social  alliance  in  every  free  government ;  and 
to  the  letter  and  spirit  of  the  constitution,  a 

"  The  right  of  taxation,  and  the  right  of  eminent  domain,  rest 
substantially  upon  the  same  foundation.  Private  property  may 
be  constitutionally  taken  for  public  use  in  two  ways,  that  is  to  .say, 
by  taxation,  and  by  right  of  eminent  domain.  These  are  rights 
which  the  people  collectively  retain  over  the  property  of  indi- 
viduals, to  resume  such  portions  of  it  as  may  be  necessary  for  pub- 
lic use.  Compensation  is  made,  when  private  property  is  taken 
in  either  way.  Money  is  property.  Taxation  takes  it  for  pubhc 
use  ;  and  the  tax-payer  receives,  or  is  supposed  to  receive,  his  just 
compensation  in  the  protection  wliich  government  affords  to  his 
life,  liberty  and  property ;  and  in  the  increase  of  the  value  of  his 
possessions,  by  the  use  to  which  government  applies  the  money 
raised  by  the  tax."  h  * 

When  private  property  is  taken  by  right  of  eminent  domain, 
special  compensation  is  made  for  the  following  reasons  :  It  is  not 
taken  as  the  owner's  share  of  contribution  to  a  public  bm'theu, 
but  as  so  much  beyond  his  share.  Special  compensation  is  there- 
fore to  be  made  in  the  latter  case,  because  government  is  a  debtor 
for  the  property  so  taken  ;  but  not  when  taken  for  taxes,  because 
tho  payment  of  taxes  is  a  duty,  and  creates  no  obligation  to  repay 
otherwise  than  in  the  proper  application  of  the  tax.  Taxation 
operates  upon  a  community,  or  upon  a  class  of  persons  in  a  com- 
mimity,  and  by  some  rule  of  apportionment.  The  exercise  of  the 
right  of  eminent  domain,  operates  upon  an  individual,  and  without 
reference  to  the  amount,  or  value  exacted  from  any  other  indi- 
vidual or  class  of  individuals.  Keeping  these  distinctions  in  mind, 
it  will  never  be  difficult  to  determine  which  of  the  two  powers  is 
exerted  in  any  given  case. 

Havmg  given  the  provisions  of  the  national  and  state  constitu- 
tions, relating  to  the  protection  of  the  private  property  of  the 
citizen,  in  language  broad,  and  clear,  it  is  still  seen,  that  these 
words  of  protection,  cannot  be  taken  in  their  strictest  and  most 
literal  sense  as  agamst  the  necessities  of  the  government  itself; 
and  these  clauses,  furnish  a  good  illustration  of  the  impossibihty 

a  Van  Home's  Lessee  v.  Dorrance,  2  Dallas,  310. 
h  People  V.  Mayor  of  Brooklyu,  4  N.  Y.  '122,  424. 


4.04  THE  TAXIKG  TOWER. 

of  construing  constitutional  provisions  in  a  spirit  of  literal  strict- 
ness. "\Micn  a  tax  is  levied,  "  private  property"  is  clearly  taken 
for  public  use,  and  taken  without  direct  actual  compensation  ;  the 
compensation  is  in  theory,  and  indirect,  on  account  of  supposed 
benelits ;  as  an  equivalent  for  the  property  taken.  If  therefore 
this  was  rigidly  intei-preted,  it  would  at  once  arrest  the  operations 
of  any  government  to  which  it  was  applied.  Such,  however,  is 
not  its  construction.  The  restriction  on  taking  private  property 
without  compensation,  does  not  apply  to  the  power  of  taxation. 
The  powers  of  the  state  over  property,  embraces  not  only  taxation, 
but  also  other  public  purposes ;  eminent  domain,  police,  public 
health,  x^ubhc  morals,  and  perhaps  other  public  interests  where 
state  exigencies  demand  its  exercise.  The  legislative  power, 
being  in  this  respect  sovereign,  in  extraordinary  emergencies,  Hke 
that  of  public  safety,  or  defence,  and  to  which  power,  indiAddual 
rights  must  be  surrendered  when  the  general  welfare  of  the  state 
demands  it. 

Under  the  eighth  section  of  article  one,  of  the  constitution  of  the 
United  States,  congress  is  given  power  "  to  lay  and  collect  taxes, 
duties,  imposts,  and  excises."  This  power  to  tax,  is  not  an  exclu- 
sive power  in  the  national  government ;  the  several  states  possess 
the  power  for  the  regulation  of  their  own  internal  policy — to  pre- 
serve the  public  health,  or  peace,  or  to  promote  their  own  pecu- 
liar interests,  a 

Chief  Justice  Marshall  has  given  this  subject  of  the  taxing  power, 
liis  especial  consideration,  h  He  says,  "  The  power  of  legislatilre, 
and  consequently  of  taxation,  operates  on  all  the  persons  and 
property,  belonging  to  the  body  politic.  This  is  an  original  prin- 
ciple, which  has  its  foundation  in  society  itself.  It  is  granted  by 
all,  for  the  benefit  of  all.  It  resides  in  government  as  a  part  of 
itself,  and  need  not  be  reserved  when  property  of  any  description, 
or  the  right  to  use  it  in  any  manner,  is  granted  to  individuals  or 
corporate  bodies.  However  absolute  the  right  of  an  individual 
may  be ;  it  is  still  m  the  nature  of  that  right,  that  it  must  bear  a 
portion  of  the  public  burthens ;  and  that  portion  must  be  deter- 
mined by  the  legislature.     This  vital  power  may  be  abused  ;  but 

a  Stoi7  on  Const.  §  4'47. 

b  rrovidence  Bunk  v.  Billings,  4  Peters,  5G2-3. 


THE  TAXING   TOWER.  405 

the  constitution  of  the  United  States,  was  not  intended  to  furnish 
the  correction  for  every  abuse  of  power  which  may  be  committed 
by  the  state  governments.  The  interest,  wisdom,  and  justice  of 
the  representative  body,  and  its  rekition  witli  its  constituents,  fur- 
nisli  the  only  security,  where  there  is  no  express  contract,  against 
unjust  and  excessive  taxation,  as  well  as  against  unwise  legisla- 
tion generally." 

In  another  case,  he  said,  a  "  The  power  of  taxiug  the  people, 
and  their  property,  is  essential  to  the  very  existence  of  government, 
and  may  be  legitimately  exercised  on  the  subjects  to  w^hich  it  is 
appHcable,  to  the  utmost  extent  to  which  the  government  may 
choose  to  can.y  it.  The  only  security  against  the  abuse  of  this 
power,  is  foimd  in  the  sti-ucture  of  the  government  itself.  In  im- 
posing a  tax,  the  legislature  acts  upon  its  constituents.  This  is, 
in  general,  a  sufficient  security  against  erroneous  and  oppressive 
taxation.  The  people  of  a  state,  therefore,  give  to  their  govern- 
ment a  right  of  taxing  themselves,  and  their  property  ;  and  as  the 
exigencies  of  government  cannot  be  Ihnitcd,  they  prescribe  no 
limits  to  the  exercise  of  this  right,  resting  confidently  on  the  inter- 
est of  the  legislator,  and  on  the  influence  of  the  constituents  over 
their  representative,  to  guard  them  against  its  abuse."  "  And  it 
is  unfit  for  the  judicial  department,  to  enquire,  what  degree  of  tax- 
ation is  the  legitimate  use,  and  what  degi-ee,  may  amount  to  an 
abuse  of  the  power."  b 

One  of  the  arguments  against  the  exercise  of  this  right,  is,  that 
the  admitted  power  of  taxation,  may  be  so  exercised  under  legis- 
lative authority,  as  greatly  to  impair  the  value  of  private  property. 
This  is  doubtless,  sometimes  tnie ;  the  power  may  be  wisely  or  mi- 
wisely,  justly  or  unjustly  exercised  ;  but,  as  a  power,  it  rests  upon 
the  theory,  that  full  compensation  is  received  by  the  individual 
in  the  benefit  conferred  by  the  tax  itself.  The  support  of  govern- 
ment, and  other  objects  of  public  utihty  promoted  by  taxation, 
are  supposed  to  rekim  to  the  individual  the  value  -which  has  been 
taken  from  him  as  his  share  of  the  public  burthen.  This  is  neither 
depriving  a  man  of  his  property  in  a  constitutional  sense,  nor  tak- 
ing it  for  public  use  under  the  right  of  eminent  domain.  '•     It  is 

a  McCulloch  v.  jMarylnua,  4  Wheat.  428.  h  Id.  430. 

c  Wyndham  v.  The  People,  13  N.  Y.  404-405. 


406  THE  TAXING  TOWEE. 

not  sufficient  that  a  law  impairs  the  value  of  property,  in  ever  so 
great  a  degree,  because  this  destroys  no  right.  It  leaves  to  the 
owner  unimpaii'ed,  his  right  to  keep,  to  use,  and  to  dispose  of  his 
property.  It  therefore  does  not  deprive  him  of  any  right  in  it. 
The  levying  and  collecting  of  taxes,  is  not  within  the  meaning  of 
the  clause  in  the  constitution,  which  provides  that  private  prop- 
erty shall  not  be  taken  for  public  use,  without  just  compensation,  a 
Nor  is  a  statute,  which  directs  the  expenses  of  street  improvements 
to  be  assessed  on  those  owners  who  are  benefited  thereby,  rendered 
unconstitutional  from  the  fact  that  the  money  thus  assessed,  was 
to  reimburse  the  city  for  money  advanced  for  that  pui-pose.  h 

Applying  these  principles,  to  the  powers  of  our  own  state  con- 
stitution, which  are  recognized  to  be  sound  by  the  highest  court 
in  this  state,  it  is  held,  c  that  taxation  proceeds  upon  the  prin- 
ciple of  the  maxim,  that  "  he  who  receives  the  advantage  ought  to 
sustain  the  burthen."  And  it  is  added,  "  that  the  power  of  taxa- 
tion, and  of  apportioning  taxation,  or  of  assigning  to  each  indi- 
vidual his  share  of  the  biu'then,  is  vested  exclusively  in  the  legis- 
lature, unless  this  power  is  limited  or  restrained  by  some  con- 
stitutional provision.  The  power  of  taxing,  and  the  power  of  ap- 
portioning taxation,  are  identical  and  inseperable.  Taxes  cannot 
be  laid  without  apportionment ;  and  the  power  of  apportionment 
is  therefore  unhmited,  unless  it  be  restrained  as  a  part  of  the 
power  of  taxation." 

"  There  is  not,  and  since  the  original  organization  of  the  state 
government,  there  has  not  been,  any  such  constitutional  hmitation 
or  restraint.  The  people  have  never  ordained  that  taxation  shaU 
be  general,  so  as  to  embrace  all  persons,  or  all  taxable  persons 
W' ithin  the  state,  or  within  any  district,  or  territorial  division  of  the 
state  ;  nor  that  it  shall  or  shall  not  be,  numerically  equal,  as  in 
the  case  of  a  capitation  tax ;  nor  that  it  must  be  in  the  ratio  of 
the  value  of  each  man's  land,  or  of  his  goods,  or  of  both  combined, 
nor  that  a  tax  must  be  co-extensive  with  the  district,  or  upon  all 
the  property  in  a  district  which  has  Ihe  character  of,  or  is  known 
to  the  law  of  a  local  sovereignty.     Nor  have  they  ordained  or  for- 

a  Howell  v.  City  of  Buffalo,  37  N.  Y.  267. 
b  Id  ;  People  v.  Lawrence,  36  Barb,  177. 
c  People  V.  Mayor  of  Brooklyn,  4  N.  Y.  425  to  432. 


THE  TAXING  TOWER.  407 

bidden  that  a  tax  shall  be  apportioned  according  to  the  benefit 
'  which  each  tax-payer  is  supposed  to  receive  from  the  object  on 
Avhich  the  tax  is  expended.     In  all  these  particulars  the  power  of 
taxation  is  unrestrained." 

"  The  application  of  any  one  of  these  rules  or  principles  of  ap- 
portionment, to  all  cases,  would  be  manifestly  oppressive  and  un- 
just. Either,  may  bo  rightfully  applied  to  the  particular  exigency 
to  which  it  is  best  adapted." 

Taxation  is  sometimes  regulated  by  one  of  these  principles,  and 
sometimes  by  another ;  and  very  often  it  has  been  apportioned 
without  reference  to  locality,  or  to  the  tax-payer's  ability  to  con- 
tribute, or  to  any  proportion  between  the  burthen  and  tile  benefit. 
The  excise  laws,  and  taxes  on  carnages,  and  watches,  are  among 
the  many  examples  of  this  description  of  taxation.  Some  taxes 
affect  classes  of  inhabitants  only.  All  duties  on  imported  goods, 
are  taxes  on  this  class  of  consumers.  The  tax  on  one  imported 
article,  falls  on  a  largo  class  of  consumers.  While  the  tax  on 
another,  affects  comparatively  but  a  few  individuals. 

"  The  duty  on  one  foreign  commodity,  is  laid  for  the  purpose  of 
revenue  mainly,  without  reference  to  the  ability  of  its  consumers 
to  pay  ;  as  in  the  case  of  the  duty  on  salt.  The  duty  on  another, 
is  laid  for  the  purpose  of  encouraging  domestic  manufacturers  of 
the  same  article ;  thus  compelling  the  consumer  to  pay  a  higher 
price  to  one  man,  than  he  otherwise  could  have  bought  the  article 
for,  from  another.  These  discriminations  may  be  impohtic,  and 
in  some  cases  unjust ;  but  if  the  power  of  taxation  upon  importa- 
tions had  not  been  transfen-ed  by  the  people  of  this  state  to  the 
federal  goveniment,  there  could  liave  been  no  pretence  for  de- 
claring them  to  be  unconstitutional  in  state  legislation." 

The  taxing  power  may  be  concun-eutly  exercised  by  the  state 
and  national  governments,  to  a  certain  extent,  but  the  national  gov- 
ernment has  the  power  to  withdraw  from  the  exercise  of  state,  the 
power  of  taxation  as  to  such  property  as  comes  within  the  powers 
conferred  upon  the  general  government,  and  as  to  which,  when 
exercised  by  the  general  government,  their  powers  are  exclusive 
and  supreme.  The  right  of  taxation  in  the  states,  extends  to  all 
subjects  over  which  its  sovereign  power  extends  ;  and  no  further. 
The  sovereignty  of  a  state  extends  to  everything  which  exists  by 


408  THE  TAXING  rOWEE. 

its  own  authority,  or  is  introduced  by  its  permission ;  but  it  does 
not  extend  to  those  means  which  are  employed  by  congi-ess  to 
carry  into  execution  their  constitutional  powers.  The  power  of 
state  taxation,  is  to  be  measured  by  the  extent  of  state  sovereignty, 
and  this  leaves  to  a  state  the  command  of  all  its  resources,  and 
the  unimpahed  power  of  taxing  the  people,  and  property  of  the 
state.  This  principle  reheves  from  conflicting  sovereignty  between 
the  two  powers,  a  For  what  purposes  the  state  may  exercise 
this  power,  wdll  be  shown  hereafter. 

"  A  property  tax  for  the  general  purposes  of  the  government, 
either  of  the  state  at  large,  or  of  a  county,  city,  or  other  district,  is 
regarded  ae  a  just  and  equitable  tax.  The  reason  is  obvious.  It 
apportions  the  burthen  according  to  the  benefit  more  nearly  than 
an}'  other  inflexible  rule  of  taxation.  A  rich  man  derii'es  more 
benefit  fi'om  taxation  in  the  benefit  and  improvement  of  his  prop- 
erty than  a  poor  man,  and  ought  therefore  to  pay  more.  But  the 
amount  oi  each  man's  benefit  in  the  general  taxation  cannot  be 
ascertained  and  estimated  with  any  degree  of  certainty ;  and  for 
that  reason,  a  property  rule  is  adopted  instead  of  an  estimate  of 
benefits.  In  local  taxation,  however,  for  special  j)urposes,  the 
local  benefits  may,  in  many  cases  be  seen,  traced  and  estimated 
to  a  reasonable  certainty.  At  least,  this  has  been  supposed  and 
assumed  to  be  true  by  the  legislature,  whose  duty  it  is  to  prescribe 
the  rules  on  which  taxation  is  to  be  apportioned  ;  and  whose  de- 
termination of  this  matter,  being  within  the  scope  of  its  lawful 
power,  is  conclusive." 

It  had  been  held,  in  a  case  decided  in  the  second  judicial  dis- 
trict in  this  state,  h  "  that  legitimate  taxation  was  limited  to  the 
imposing  of  burdens  or  charges  for  a  public  purpose,  equally  upon 
the  persons  or  property  within  a  district  know^n  and  recognized  by 
law  as  possessing  a  local  sovereignty  for  certain  pui-poses,  as  a 
state,  county,  city,  town,  village,  &c.,  excluding  from  the  operation 
of  taxing  power  all  those  cases  in  which  the  expenses  of  laying  out 
pubhc  squares,  and  of  opening  or  widening  of  streets,  or  other  Uke 
improvements  are  charged  upon  certain  persons  or  property  in 
consequence  of  supposed  benefits.     And  that  a  tax  to  be  valid, 

a  1  Kent's  Com.  425. 

b  The  People  v.  The  Mayor  of  Brooklyn,  C  Barb.  209. 


THE  TAXING  TOWER.  4.09 

must  be  apportioned  upon  piinciples  of  just  equality.  And  also, 
that  this  was  a  fundamental  piinciplo  of  free  government,  which, 
although  not  contained  in  the  constitution,  limits  and  controls 
the  power  of  the  legislature. 

The  case  which  enunciated  this  doctrine,  was  taken  to  the  court 
of  last  resort  in  this  state,  where  the  doctrine  was  declared  not 
only  to  be  new,  but  dangerous.  Said  the  Court  of  Appeals,  a  "  this 
doctrine  clothes  the  judicial  tribunals  Avitli  the  power  of  trying  the 
vahdity  of  a  tax  by  a  test,  neither  prescribed  nor  defined  by  the 
constitution.  If  by  tliis  test  we  may  condemn  an  assessment  ap- 
portioned according  to  the  relation  between  burthen  and  benefit, 
we  may,  with  far  better  reason,  condemn  a  capitation  tax,  on  the 
groimd,  that  numerical  equality,  is  not  just  equality  ;  or  a  general 
property  tax  for  a  local  object,  because  it  compels  one  portion  of 
the  community  to  pay  more  than  theu*  just  share  for  the  benefit  of 
another  portion.  All  discriminations  in  the  taxation  of  property, 
and  all  exemptions  from  taxation  on  the  grounds  of  public  poHcy, 
would  fall  by  the  application  of  this  test.  If  this  doctrine  prevails, 
it  places  the  power  of  the  courts  above  that  of  the  legislature,  in  a 
matter  affecting  not  only  the  vital  interests,  but  the  very  existence 
of  the  government.  It  assumes  that  the  apportionment  of  taxa- 
tion is  to  be  regulated  by  judicial,  and  not  by  legislative  discre- 
tion. It  obstructs  the  exercise  of  powers  which  belong  to,  and  are 
inherent  in  the  legislative  department,  and  restrains  the  action  of 
that  branch  of  the  government  in  cases  in  which  the  constitu- 
tion has  left  it  fi*ee  to  act." 

The  doctrine  which  was  thus  repudiated  by  the  Court  of  Appeals, 
it  seems  originated  in  the  state  of  Kentucky,  under  an  especial,  or 
pecuhar  clause  in  their  state  constitution,  not  found  in  ours.  But 
the  whole  doctrine  of  the  constitutionality  of  the  power  of  assess- 
ment and  taxation  m  this  state,  was  thoroughly  considered  in  our 
court  of  dernier  resort,  and  the  clear,  elaborate  and  able  opinion 
of  Ruggles,  J.,  adopted  by  the  whole  court,  forms  of  itself,  an  ex- 
haustive view  of  the  subject,  never  since  questioned,  and  makes 
of  itself,  a  chapter  on  this  subject  worthy  of  being  perpetuated  as 
elementary  law. 

Various  cases  which  were  supposed  to  have  been  decided  upon 

a  The  People  v.   Mayor  of  Brooklyn,  4  N.  Y.  429. 
52 


410  THE  TAXING  TOWER. 

the  contrary  principle,  were  ably  reviewed  by  tlie  Court  of  Appeals, 
and  tlie  distinction  either  pointed  out,  or  the  dicta  contained  in 
them  intimating  a  contrary  doctinne  overruled.  And  the  court 
say,  "  There  never  was  any  just  foundation  for  saying,  that  local 
taxation  must  necessarily  be  limited  by,  or  co-extensive  with  any 
previously  established  district.  It  is  undoubtedly  wrong,  that  a 
few  should  be  taxed  for  the  benefit  of  the  whole  ;  and  it  is  equally 
wrong,  that  the  whole  should  be  taxed  for  the  benefit  of  the  few. 
No  one  town  ought  to  be  taxed  exclusively  for  the  payment  of 
county  taxes ;  and  no  county  should  be  taxed  for  the  expenses  in- 
cuiTed  for  the  benefit  of  a  single  town.  The  same  pi-inciple  of 
justice  requires,  that  where  taxation  for  any  local  object  benefits 
only  a  portion  of  a  city  or  town,  that  portion  only,  should  bear  the 
burthen.  There  being  no  constitutional  prohibition,  the  legisla- 
lature  may  create  a  district  for  that  especial  purpose,  or  they  may 
tax  a  class  of  lands  or  persons  benefited  to  be  designated  by  the 
public  agents,  appointed  for  that  purpose  without  reference  to 
town,  county,  or  district  lines.  General  taxation,  for  such  local 
objects,  is  manifestly  unjust.  It  burthens  those  who  are  not  bene- 
fited, and  benefits  those  who  are  not  burthened." 

"  This  injustice  has  led  to  the  substitution  of  street  assessments, 
in  the  place  of  general  taxation ;  and  it  seems  impossible  to  deny, 
that  in  the  theory  of  their  apportionment,  they  are  far  more  equit- 
able than  general  taxation  for  the  purpose  they  are  designed  for." 

"  The  same  principle  of  apportioimient,  has  been  applied  to 
bridges,  and  turnpike  roads.  The  money  paid  for  their  construc- 
tion and  maintenance  is  reimbursed  by  means  of  tolls.  Tolls  are 
delegated  taxation  ;  and  this  taxation  is  charged  and  apportioned 
upon  those  only,  who  derive  a  benefit  from  the  original  expendi- 
ture, and  in  proportion  to  that  benefit.  General  taxation  upon  a 
town  or  county  for  the  building  of  a  bridge,  is  valid  and  lawful, 
but  obviously  unjust ;  and  because,  it  compels  one  to  pay  for  the 
benefit  of  another.  Tolls  are  more  equitable,  because  they  equal- 
ize the  burthen  with  the  benefit." 

"  But  this  theory  of  apportioning  taxation,  is  not  confined  in 
practice  to  street  assessments  and  tolls  on  bridges  and  turnpike 
roads.  The  main  revenues  of  the  state,  canal  tolls,  are  regulated 
upon  the  same  principle ;  and  so  far  as  the  objection  to  street 


THE  TAXING  TOWER.  4H 

assessments  applies  to  tlio  principle  of  selecting  those  only  who 
are  benefited,  and  laying  the  biu'then  upon  them  in  proportion  to 
their  respective  advantages,  it  applies  with  equal  force  to  toUs  on 
bridges  and  turnpikes,  and  on  the  pubhc  canals.  The  difference 
is  only  in  the  mode  in  wliich  each  tax-payer's  share  of  the  burthen 
is  ascertained." 

"  It  has  been  said,  that  the  benefits  derived  from  the  grading 
and  paving  of  a  street,  are  sometimes  fanciful  and  imaginary,  and 
always  uncertain  and  incapable  of  being  estimated  with  that  exact- 
ness which  is  necessary  for  the  purposes  of  justice  to  the  individ- 
uals assessed.  But  this  is  a  consideration  to  be  addressed  to  the 
legislature,  and  not  to  the  judicial  authorities  The  courts  cannot 
assume  that  this  proposition  is  true  in  point  of  fact.  The  legisla- 
ture has  evidently  acted  on  the  behef  that  it  is  untrue." 

"That  mistakes  may  have  happened, — that  abuses  may  have 
been  practiced — and  that  injustice  may  have  been  done,  in  making 
street  assessments,  it  is  not  necessary  to  deny.  Mistakes,  abuses, 
and  injustice,  have  often  occurred  in  general  taxation.  These  are 
not  gi-ounds  upon  which  either  system  of  supplying  the  public 
treasury,  can  be  denounced  as  unconstitutional.  If  the  systems 
are  imperfect,  they  should  be  reformed  by  the  legislature.  If  the 
street  assessments  are  in  their  practical  operation  oppressive  and 
unjust,  the  statutes  which  authorize  them  should  be  repealed. 
The  remedy  for  unjust  or  unwise  legislation,  is  not  to  be  adminis- 
tered by  the  com-ts.  It  remains  in  the  hands  of  the  people ;  and 
is  to  be  wrought  out  by  means  of  a  change  in  the  representative 
body,  if  it  cannot  otherwise  be  obtained." 

"  The  constitution  has  imposed  upon  the  legislatui-e  the  duty  of 
restraining  the  power  of  mmiicipal  corporations  in  making  assess- 
ments, and  preventing  abuses  therein,  a  To  assume  that  this 
duty  has  been,  and  will  be  neglected,  is  a  denial  of  that  reasona- 
able  confidence  which  one  department  of  the  government  ought 
always  to  entertain  towards  the  others.  The  danger  of  abuse 
which  is  supposed  to  exist  in  the  making  of  street  assessments, 
exists  in  a  greater  or  less  degree  in  every  conceivable  system  of 
taxation  according  to  value ;  and  if  the  courts  have  authority  to 
annul,  any  other  tax  assessed  upon  valuation  on  the  same  ground, 

a  Const,  of  1846.  Ai-t.  8  §  9 


41 'J  THE  TAXING  TO  WEE. 

it  need  not  be  said,  tliat  this  would  be  a  much  more  alarming 
power,  than  the  unhmited  right  of  taxation  entrusted  by  the  peo- 
ple to  their  representatives;" 

"  The  difference  between  general  taxation,  and  special  assess- 
ments for  local  objects,  requires  that  they  should  be  distinguished 
by  different  names,  although  both  derive  their  authority,  from  the 
taxing  power.  They  have  always  been  so  distinguished,  and  it  is 
therefore  evident  that  the  word  tax,  may  be  used  in  a  contract,  or 
in  a  statute,  in  a  sense  wliicli  would  not  include  a  street  assess- 
ment, or  any  other  local  or  special  taxation  wdthin  its  meaning. 
Several  cases  have  been  found  in  which  it  has  been  adjudged  to 
have  been  so  used.  But  in  no  case,  has  it  been  adjudged,  that 
street  assessments  are  not  made  by  wtue  of  the  legislative  taxing 
power.  If  there  are  expressions  to  the  contrary,  in  some  of  the 
cases,  it  will  be  found  that  they  are  dicta,  inapplicable  to  the 
point  decided,  or  if  applicable,  that  they  were  unnecessary  to  the 
decision,  and  not  well  considered. ' 

The  hne  which  distinguishes  between  the  cases  of  taking  private 
property  for  pubhc  purposes  under  the  right  of  eminent  domain ;  and 
that  of  the  taxing  power  under  the  constitution,  has  been  one  of  the 
most  prohfic  sources  of  controversy  and  litigation  in  the  courts. 
This  is  the  natural  result  of  an  education  of  the  masses  of  our 
people,  who,  under  a  system  of  a  free  government,  which  seems  to 
confer  upon  the  individual  citizen  absolute  rights ;  a  system  which 
teaches  them  to  look  with  jealousy  upon  the  exercise  of  power, 
whenever  it  comes  m  conflict  with  the  sole  and  absolute  dominion 
of  the  citizen,  over  his  own  posessions. 

But  it  is  no  longer  a  question  of  constitutional  power,  in  this 
state,  that  the  legislature  can  compel  public  burthens  to  be  borne 
by  the  persons  who  ought  to  bear  them ;  or  wdio,  in  the  judg- 
ment of  the  legislature  ought  to  bear  them,  without,  or  even 
against  the  consent  of  such  persons ;  and  the  legislature  have  the 

Note  1. — Among  the  cases  criticized  as  coming  within  the  charge  of  dicta,  in  ap- 
plicability, not  necessary  to  the  decision,  or  not  well  considered  ;  are,  Matter  ct 
Mayor  of  New  York,  11  John,  80  ;  Bleecker  v.  Ballon,  3  Wend.  266  ;  Sharp  v. 
Spier,  4  Hill,  76 .  The  following  decisions  are  found  to  sustain  the  principles 
above  laid  down.  Livingston  v.  Mayor  of  New  York,  8  Wend.  85-101  ;  Owners 
of  Ground  Assessed  v.  Mayor  of  Albany,  15  Wend.  376,  as  to  taxing  power  ; 
Thomas  v.  Leland,  24  Wend.  65  ;  Striker  v.  Kelly,  7  Hill,  9-23. 


THE  TAXING  TOWER.  413 

power  to  authorize  and  direct  a  tax  to  be  assessed,  and  levied, 
upon  the  property  of  such  persons  as  in  their  judgment  ought  to 
bear  the  burthen  to  pay  the  expenses  of  any  such  public  improve- 
ment, or  supposed  public  benefit.  The  liability  of  the  persons 
upon  whom  the  expenses  of  improvement  is  cast,  stands  upon  the 
same  ground  as  all  other  Uability  to  taxation,  a 

The  legislature  may  designate  any  one  to  institute  proceedings 
to  acquire  private  property  for  pubHc  purposes,  as  where  the  com- 
missioners of  the  Central  Park  in  the  city  of  New  York,  a  recognized 
public  body  were  authorized  to  institute  such  proceedings,  the 
question  whether  such  a  body  liad,  apart  from  this  legislative 
power,  a  legal  existence,  was  held  to  be  immaterial,  h 

The  legislature,  even,  possess  the  poAvcr  to  levy  a  tax  upon  the 
taxable  property  of  a  town,  and  appropriate  the  same  to  the  pay- 
ment of  a  claim,  made  by  an  individual  against  a  town.  Nor  is  it 
a  valid  objection  to  the  exercise  of  such  power,  that  the  claim  to 
satisfy  which  the  tax  was  levied,  was  not  recoverable  by  action 
against  the  town;  c  and  the  courts  iiavc  no  power  to  supervise  or 
review  the  domgs  of  the  legislature  in  such  cases,  d  It  can  thus 
recognize  claims  founded  in  equity  and  justice,  in  the  largest  sense 
of  these  terms,  or  in  gratitude  or  charity,  c 

"  It  is  weU  settled,  that  the  authority  to  raise  money  by  the  ex- 
ercise of  the  taxing  power,  is  not  in  conflict  with  the  constitutional 
provisions,  protecting  private  property  from  seizure.  The  two 
principles  co-exist  in  the  constitution,  and  it  is  not  difficult  to  dis- 
tinguish between  them./  This  power  is  frequently  resorted  to 
for  the  pui-pose  of  promoting  education,  and  canying  out  the  sys- 
tem of  common  schools.  For  such  purposes  in  this  state,  the 
power  has  ceased  to  be  questioned.  It  prevails  and  is  exercised 
equally  in  other  states,  (j 

We  are  now  treating  of  the  constitutional  power  of  this  state. 
It  is  needless,  as  well  as  useless  in  this  work  to  discuss  it  as  a 
question  of  state  policy,  or  as  to  the  extent   which  this  power 

a  Brewster  v.  City  of  Syracuse,  19  N.  Y.  116-118. 

h  Mutter  of  Central  Park  Extension,  19  Abbott,  56. 

c  The  Town  of  Guilford  v.  Supervisors  of  Chenango  Co.  13  N.  Y.  E.  143. 

d  Id.  118.  e  Per  Denio,  J.  Id.  149. 

/Id.  see  Booth  v.  Town  of  Woodbury,  32  Conn.  K.  118. 

g  Commonwealth  v.  Ilartman,  17  Peun.  119. 


414  THE  TAXING  TOWER. 

ought  to  be  exercised.  This  work  does  not  intend  to  discuss  ques- 
tions of  pohtical,  or  domestic  pohcj.  Under  the  question  of  power, 
it  is  now  held,  that  the  legislature  of  a  state  unless  restrained  by 
its  constitution  can  authorize  a  county,  or  a  town  to  take  stock  in 
a  raih'oad  or  other  public  improvement ;  to  borrow  money  to  pay 
for  the  same  ;  and  to  levy  a  tax  to  repay  the  loan  ;  that  this  au- 
thority can  be  confeiTed  in  such  a  manner  as  to  accomplish  the 
pm-pose,  either  with  or  without  a  popular  vote ;  and  when  the 
legislature  have  power  to  authorize  the  act,  it  can  by  retrospective 
legislation,  cure  the  evils  arising  fi"om  an  irregular  execution  of 
such  power,  a  ^ 

Whatever  may  be  the  interpretation  of  the  legislative  jDower 
under  constitutions  of  other  states,  in  the  state  of  New  York,  it 
would  seem  to  be  settled,  that  where  the  fundamental  law  has  not 
hmited,  either  in  terms,  or  by  necessary  impKcation,  the  general 
powers  conferred  upon  the  legislature,  courts  cannot  declare  a 
Umiicdion,  under  the  notion  of  having  discovered  something  in  the 
spirit  of  the  constitution  upon  a  subject  which  is  not  even  men- 
tioned, h 

In  relation  to  the  taxing  power,  there  is  found  no  restriction  in 
the  constitution  upon  the  power  of  the  legislature  ;  it  is  therefore 
limited,  only  by  their  own  discretion.     It  possesses  all  the  power 

a  The  People  v.  Mitchell,  35  N.  Y.  551-3;  Wall,  U.  S.  R.  327;  Thompson  v. 
Lee  Count  J'. 

6  People  V.  Fisher,  24  Wend. -220;  Benson  v.  Mayor  of  Albany,  24  Barb.  2-i8 
Grant  v.  Courter,  id.  237. 

Note  2. — In  the  case  of  Sweet  v.  Hulburt,  reported  in  51  Barb.  312,  the  author 
is  found  concuring  in  the  decision  of  that  case,  which,  in  some  respects,  is  in 
conflict  with  the  principles  above  laid  down  in  this  work.  So  far  as  it  is  in  con- 
flict, he  desires  to  say,  he  failed  to  give  that  case  all  the  consideration,  that  his 
subsequent  and  better  examination  of  the  law  has  impressed  upon  his  mind,  and 
though  he  concurred  then,  in  the  resiilt,  though  not  in  all  the  reasonings,  his 
better  judgment  now  is,  that  the  case,  upon  the  i^rinciple  of  the  power  of  con- 
stitutional right  of  taxation,  for  the  purposes  in  the  act  mentioned,  was  erroneously 
decided.  The  word  "  donated"  in  iho  act  in  question,  did  noK express  the  true 
spirit  of  the  act.  Had  the  word  "  contrihute  "  which  was  its  spirit,  instead  of  "  do- 
nate" which  was  its  letter,  been  used,  the  spirit  of  the  act  would  have  been  better 
expressed,  and  no  legal  objection  could  have  been  raised  against  it.  I  think  the 
true  rule  is,  that  though  a  law,  unjust  in  its  operation,  should  be,  or  is  enacted, 
nevertheless,  if  not  forbidden  by  the  constitution,  the  remedy  is  not  in  an  appeal 
to  the  judiciary,  but  to  the  people,  who  must  apply  the  corrective. 


THE  TAXING  TOWER.  415 

of  legislation  that  was  possessed  by  the  British  parhament,  except 
by  the  express  or  impUed  restrictions  in  the  constitution  itself,  a 
To  detci-mino  an  act  of  the  legislature,  ^vith  reference  to  taxation 
for  a  public  improvement  or  a  public  object,  to  be  unconstitutional, 
we  must  see  the  prohibition  contained  in  the  constitution  itself,  in 
express  terms,  or  by  necessary  implication  from  its  terms. 

"  But  there  is  a  spmt  existing  among  the  people,  and  cases  are 
found,  where  the  courts  have  Ijccu  disposed  to  encourage  this 
spirit  and  hold,  that  a  law,  tlipugh  not  prohibited  by  the  constitu- 
tion, is  void  if  it  violates  the  spirit  of  our  institutions  or  impairs 
any  of  those  rights  Avliich  it  is  the  object  of  a  free  government  to 
protect,  and  it  is  claimed  that  the  courts  can  declare  such  an  act 
unconstitutional,  if  they  deem  it  wrong  or  unjust,"  or,  to  boiTOW 
the  language  of  a  modern  case,  h  "in  delegating  to  a  Senate  and 
Assembly  with  the  approval  of  the  governor  the  power  to  make 
laws,  under  certain  limitations  and  restrictions,  but  without  enum- 
erating and  defining  those  poAvers,  the  people  did  not,  nor  did  they 
intend  to,  invest  that  body  with  authority  to  make  laws  inconsis- 
tent with  natural  right."  And  also,c  "There  are  certain  vital 
prineii)les  wliich  will  determine  and  overrule  an  apparent  and 
lliigrant  abuse  of  legislative  power;  as  to  authorize  manifest  in- 
justice by  positive  law ;  or  to  take  away  that  security  for  personal 
liberty  or  private  property,  for  the  protection  of  which  goveni- 
ments  are  instituted.  An  act  of  the  legislature,  contrary  to  the 
first  great  principles  of  the  social  compact,  cannot  be  considered 
a  rightful  exercise  of  legislative  authority." 

This  sounds  well,  and  is  well  written,  but  is  it  sound  in  theory, 
as  constitutional  law  ?  Under  what  power  of  the  constitution,  are 
the  courts  authorized  to  nullify  a  law  of  the  legislatui'e  except  for 
its  uifi-action  of  that  mstrument  ?  If  the  legislature,  under  the 
admitted  authority  of  the  taxing  power,  have  been  imjust  or  op- 
pressive in  the  enactment  of  a  law,  has  the  right  ever  been  heard 
of,  under  our  system  ;  has  the  power  ever  been  discovered  in  our 
constitution,  that  clothes  the  judiciary  with  authority  to  declare 

a  See  People  v.  Morrill,  21  Wend.  SG3;  Butler  v.  Palmer,  1  Hill,  324;  Blood- 
good  V.  Mohawk  &  Hudson  R.  R.  Co.,  18  Wend.  9;  Leggett  v.  Hunter.  19  N.  Y. 
R.  445,  and  cases  cited;  Sharpless  v.  Mayor  of  Philadelphia,  21  Penn.  148. 

6  Sweet  v.  Hulburt,  51  Barb.  318.  c  Id.  317. 


416  THE  TAXING  POWER. 

the  law  to  be  void,  because  it  is  unjust  ?  It  would  be  assuming  a 
right  on  the  part  of  a  court,  to  change  the  constitution ; — to  sup- 
ply what  they  might  conceive  to  be  its  defects ;  to  interpolate  into 
it,  whatever  in  tlieh  opinion  ought  to  have  been  put  there  by  its 
framers.  The  constitution  has  expressed  in  terms  of  prohibition, 
the  things  which  the  legislature  may  not  do.  If  the  judiciary 
shall  assume  that  there  are  ceiiain  other  things  that  the  legisla- 
tion shall  not  do,  and  so  declare  it,  do  they  not  extend  the  list  ? 
Do  they  not  thereby  alter  that  insta-uinent  ?  Do  they  not  become 
aggressors  themselves  ?  Do  they  not  thus  violate  both  the  letter 
and  spuit  of  that  organic  law,  even  more  than  the  legislature  pos- 
sibly could  ?  If  they  can  add  to  the  reserved  rights  of  the  people, 
they  can  take  them  away  ;  if  they  can  mend,  they  can  mar ;  if 
they  can  remove  the  landmarks  that  the  people  established  for 
their  own  protection,  they  can  obliterate  them ;  if  they  can  change 
the  constitution  in  any  particular,  there  is  nothing  but  their  own 
will  to  prevent  them  from  demolishing  it  entkely. 

In  a  case,  in  the  state  of  Pennsylvania  a  Chief  Justice  Black 
held  this  language  :  he  said,  "  The  great  powers  given  to  the  leg- 
islature are  liable  to  be  abused.  But  this  is  inseparable  from  the 
nature  of  human  institutions.  The  wisdom  of  man  has  never  con- 
ceived of  a  government  with  power  sufficient  to  answer  its  legiti- 
mate ends,  and  at  the  same  time  incapable  of  mischief.  No  poli- 
tical system  can  be  made  so  perfect,  that  its  rulers  will  always  hold 
it  to  the  true  course.  In  the  very  best,  a  great  deal  must  be 
trasted  to  the  discretion  of  those  who  administer  it.  In  ours,  the 
people  have  given  larger  powers  to  the  legislature,  and  rehed,  for 
the  faithful  execution  of  them,  on  the  wisdom  and  honesty  of  that 
department,  and  on  the  direct  accountabihty  of  the  members  to 
their  constituents.  There  is  no  shadow  of  reason,  for  supposing 
that  the  mere  abuse  of  power  was  meant  to  be  corrected  by  the 
judiciary." 

The  leading  and  most  prominent  objection  raised  to  the  exercise 
of  the  taxing  power  to  favor  railroad  corporations,  is  on  the  ground, 
that  they  are  private  corporations,  and  that  such  taxation,  is,  con- 
sequently, to  be  applied  to  a  private  purpose.  If  the  premises  of 
tliis  proposition  were  sound,  such  taxation  would  clearly  be  unau- 

a  Sharplessv.  Mayor  of  Philadelphia,  21  Penn.  St.  K.  161,  2. 


THE  TAXING  POWER.  417 

tliorized  and  void.  But  the  right  of  taxation  depends  upon  the 
object  for  wliich  the  fund  is  raised,  or  the  ultimate  use  to  which  it 
is  to  be  applied,  and  not  upon  the  character  of  the  i)erson  or  cor- 
poration whose  agency  is  employed  in  applying  it.  It  having  been 
settled  in  this  state  that  railroads  organized  under  legislative 
authority  are  iTublic  improvements,  and  that  the  public  have  an 
advantage  and  interest  in  them  ;  the  pubHc  may  also  be  taxed  for 
this  purpose,  though  it  be  done  under  the  direction  and  agency 
of  an  individual  or  private  coi-poration.  a 

It  is  believed  to  be  a  narrow  view  of  governmental  duty,  to  insist 
upon  confining  the  state,  to  the  performance  of  such  duties  only, 
as  are  necessary  to  sustain  the  existence  of  government ;  as  for 
instance,  to  the  admiuistrationof  justice,  the  preservation  of  peace, 
and  protection  of  individual  interests  ;  nor  has  it  so  confined  itself. 
Schools,  colleges,  institutions  of  charity  and  benevolence,  mstitu- 
tions  for  the  promotion  of  arts  and  sciences,  and  other  objects  too 
numerous  to  mention,  have  not  only  been  established,  and  their 
objects  promoted  by  state  policy,  but  taxes  have  been  laid  upon 
individuals  by  which,  their  private  property  has  been  so  taken  and 
appropriated.  Canals,  bridges,  roads,  and  other  means  of  pas- 
sage and  transportation  from  one  part  of  the  country  to  another 
for  commercial  purposes,  have  been  constracted  by  the  state  at 
public  expense  fi-om  individual  taxation,  not  only  here,  but  by 
every  civilized  government ;  ancient  or  modern.  If  these  are  not 
public  improvements,  the  law  directing  taxation  for  them  is  void. 
It  has  upon  this  assumption,  therefore,  been  adopted  as  the  poUcy 
of  this  state,  enacted  mto  law  by  its  legislature,  and  sustained  by 
judicial  interpretation.  It  is  held  that  the  state  may  employ  the 
agency  of  individuals  or  corporations  to  construct  such  works,  and 
though  the  company  may  be  private,  the  work  they  undertake,  is  , 
for  the  public  benefit,  to  do  which,  is  within  the  power  of  the 
state,  as  well  as  the  duty ;  and  the  state  may  therefore,  delegate 
a  suliicient  share  of  the  sovereign  power  by  way  of  taxation 
and  eminent  domain,  to  enable  such  agents  to  perform  the  work. 
The  power  of  taxation  by  the  legislature  is  unrestrained  by  the 
constitution,  except  by  a  provision  that  through  it,  they  cannot 
take  piivate  property  for  private  purposes.    The  courts,  hold  those 

a  Bonaparte  v.  The  Camdeu  and  Auiboy  ER.  Co.,  1  Baldwin  E.  223. 
63 


418  THE  TAXING  POWER. 

purposes  and  objects  to  be  public,  wliich  develop  the  physical  re- 
soiu'ces,  promote  its  commerce,  and  estabhsh  pubhc  benefactions 
for  the  poor,  the  blind,  or  the  insane.  These  are  clearly  the  pur- 
poses of  a  wise  and  humane  government.  The  theory  of  our  gov- 
ernment, then  seems  to  be  this  ;  the  people  by  their  constitution 
have  invested  the  legislature  with  all  legislative  power,  and  this 
includes  the  power  of  enacting  laws  for  taxing  themselves  for  pubHc 
piu'poses,  and  for  the  exigencies  of  government,  and  the  only  remedy 
of  the  people  for  unjust  legislation  done  within  admitted  bounds, 
is  to  change  then*  representatives,  and  thus  correct  the  evil. 

Taxation  is  always  a  dehcate,  a  peculiarly  flexible,  and  a  most 
indefinite  power.  There  are  certam  propositions,  however,  that 
must  be  conceded,  and  they  may  be  laid  down  as  estabhshed. 
First,  that  every  citizen  is  equally  bound  to  support  the  govern- 
ment, and  aid  in  promoting  its  beneficent  ends.  He  must  also 
submit  to  the  inherent  power  of  sovereignty  in  the  government  to 
exercise  the  right  of  eminent  domain,  limited  only  by  the  funda- 
mental security  tliat  he  receive  just  compensation  for  private 
property  taken  for  public  benefit.  Second,  that  every  citizen, 
when  called  upon,  should  contribute  in  the  fomi  of  taxation,  direct, 
or  indirect,  to  burthens  resulting  from  the  administration  of  the 
government  and  its  laws,  under  which  he  claims  protection.  The 
taxpayers  compensation,  is  in  his  reciprocal  benefit.  Equality,  is 
the  great  object  of  the  constitution,  and  should  be  of  the  laws ; 
but  mathematical  equality  is  practically  im}x)ssible.  The  history 
of  sustained  taxation,  in  every  form,  always  shows  actual  ine- 
quality. A  tax  may  be  constitutionally  imposed  upon  one  class 
of  }  roperty  only,  and  many  may  own  no  such  property  ;  or,  it  may 
be  specific,  and  therefore  arbitrary,  and  will  be  also  necessarily 
imequal ;  or  it  may  be  on  all  property  od  valorem;  and  even  then 
those  owning  no  taxable  propei-ty  will  contribute  nothing,  even 
though  they  derive  great  personal  benefit  from  the  appropriation 
of  the  taxes.  And  in  whatever  form,  or  for  whatever  purpose 
taxes  may  be  imposed,  and  however  nearly  they  may  seem  to 
approximate  to  equality,  they  will  be  found  to  be  necessarily  une- 
qual when  tested  by  the  only  rule  or  principle  of  taxation  ;  which 
is,  an  equal  degree  of  benefit  to  each  person  in  the  use  made  of 
the  tax.     There  is  no  human  process  by  which  a  relative  degree  of 


TUE   TAXIKG   POWER.  419 

interest  can  bo  precisely  graduated.  It  is  undeniable,  that  all  the 
citizens  of  one  county,  or  a  town,  have  not  the  same  equal  interest 
in  a  local  improvement,  such  as  a  road,  or  a  bridge,  or  a  plank  or 
railroad,  but  there  is  no  method  by  which  the  exact  interest  of  each 
can  be  ascertained ;  this  exactness  therefore,  must  in  degree,  be 
disregarded  in  taxing  for  the  construction  or  repair  of  such  im- 
provements, and  it  is  seen  that  not  the  local  inhabitants  alone,  are 
benefited,  the  people  of  other  localities,  counties  or  towns,  are 
also  benefited  by  these  improvements,  and  the  whole  pubhc  as 
well  as  the  local  citizen  are  benefited  to  the  extent,  that  such 
improvements  contribute  to  the  social  and  commercial  intercom- 
munication between  the  citizens  of  the  different  locahties ;  and 
yet,  the  taxes  to  construct  or  repair  a  highway  or  a  bridge  cannot 
be  levied  beyond  the  hmits  of  the  town  or  county  within  which  the 
pubhc  improvement  is  made.  Inequality  of  taxation  is  not  there- 
fore, unconstitutional,  a 

The  legislative  power  in  this  state,  under  the  constitution,  has 
been  so  ably,  faithfully,  and  fully,  presented,  and  estabhshed  by 
the  highest  court  of  the  state,  including  in  the  principle,  the  taxing 
power,  that  an  omission  to  copy  their  views,  Avlien  discussing  tliis 
subject  would  seem  to  be  inexcusable. 

Chief  Justice  Denio,  in  pronouncing  the  opinion  of  the  court, 
said  :h  "In  the  first  place,  the  people  in  framing  the  constitution, 
committed  to  the  legislatiu'e  the  whole  law-making  power  of  the 
state,  which  they  did  not  expressly  or  impliedly  withhold.  Plenary 
power  in  the  legislature  for  aU  pm-poses  of  civil  government,  is  the 
rale.  A  proliibition  to  exercise  a  particular  power  is  the  excep- 
tion. In  enquiring,  therefore,  whether  a  given  statute  is  constitu- 
tional, it  is  for  those  who  questions  its  validity  to  show  that  it 
is  forl)iddcn.  I  do  not  mean  that  the  power  must  bo  expressly 
inhibited,  for  there  are  but  few  positive  restraints  upon  the  legis- 
lative power  contained  in  the  instrument.  Every  positive  direction 
contains  an  impUcation  against  anything  contrary  to  it,  or  which 
would  fi'ustrate  or  disappoint  the  pm'pose  of  that  provision.  The 
frame  of  the  government ;  the  grant  of  legislative  power  itself ;  the 
organization  of  the  executive  authority ;  the  erection  of  the  prin- 

a  County  Judge  of  Shelby  Co.  v.  Shelby  RK.  Co.  3  Kentucky  E. 
h  People  V.  Draper,  15  N.  Y.  543. 


4ii0  THE  TAXING  POWER. 

cipal  courts  of  justice ;  create  implied  limitations  upon  the  law- 
making authority  as  strong  as  though  a  negative  was  expressed  in 
each  instance.  But  independently  of  these  restraints,  express  or 
impHed,  every  subject  within  the  scope  of  civil  government,  is 
Uable  to  be  dealt  with  by  the  legislature.  As  it  may  act  upon  the 
state  at  large^  by  laws  affecting  at  once  the  whole  country,  and  all 
the  people,  so  it  may  in  its  discretion,  and  independently  of  any 
proliibition,  expressly  made  or  necessarily  implied,  make  special 
laws  relating  to  any  sej)arate  district  or  section  of  the  state.  As 
a  pohtical  society,  the  state  has  an  interest  in  the  repression  of 
disorder,  and  the  maintenance  of  peace  and  security  in  every  locality 
within  its  limits ;  and  if  from  exceptional  causes,  the  pubhc  good 
requires  that  legislation,  either  permanent  or  temporary,  be  directed 
towards  any  particular  locality,  whether  consisting  of  one  county 
or  several  counties,  it  is  within  the  discretion  of  the  legislature  to 
apply  such  legislation  as  iu  its  judgment,  the  exigency  of  the  case 
may  require  ;  and  it  is  the  sole  judge  of  the  existence  of  such  causes. 
The  representatives  of  the  whole  people,  convened  in  the  two 
branches  of  the  legislature,  are,  (subject  to  the  exceptions  which 
have  been  mentioned,)  the  organs  of  the  pubhc  will  in  every  dis- 
trict or  locality  of  the  state.  It  follows,  that  it  belongs  to  the  leg- 
islature to  arrange  and  distribute  the  administrative  functions, 
committing  such  portions  as  it  may  deem  suitable,  to  local  juris- 
dictions, and  retaining  other  portions  to  be  exercised  by  officers 
appointed  by  the  central  power ;  and  changhig  the  arrangement 
from  time  to  time,  as  convenience,  the  efficiency  of  administration 
and  the  pubhc  good  may  seem  to  require.  If  a  particular  act  of 
legislation  does  not  conflict  with  any  of  the  limitations  or  restraints 
that  have  been  referred  to,  it  is  not  in  the  power  of  the  courts  to 
arrest  its  execution,  however  unwise  its  provisions  may  be,  or 
whatever  the  motives  may  have  been  which  led  to  its  enactment. 
There  is  room  for  much  bad  legislation  and  misgovernment  within 
the  pale  of  the  constitution  ;  but  when  this  happens,  the  remedy 
which  the  constitution  provides,  by  the  opportunity  for  frequent 
renewals  of  the  legislative  bodies,  is  far  more  efficacious  than  any 
which  can  be  afforded  by  the  judiciary."  This  extended  extract, 
seems  to  be  called  for,  to  excuse  the  concurrence  with  a  different 
view  of  legislative  pov/er,  expressed  in  the  case  of  Sweet  v.  Hul- 


THE  TAXING   POWER.  421 

bnrt  above  referred  to,  a  so  far  as  it  differs  from  tliis.  Tliis  case 
coming  from  a  higher  source  of  authority  must  be  controlling  as 
the  law  of  this  state,  and  as  being  the  settled  interpretation  of  con- 
stitutional power  in  the  legislative  body.  N<jr  does  tliis  case  stand 
alone. 

The  Supreme  Court  of  this  state,  whose  unreversed  and  unques- 
tioned adjudications  we  must  now  regard  as  the  law  of  the  state, 
have  laid  down  the  following  propositions  in  regard  to  the  taxing 
power  of  the  legislature,  as  connected  with  the  construction  of 
public  works,  and  especially  as  connected  with  taxation  in  aid  of 
railroads,  which  will  equally  apply  to  other  public  imj-jrovements.  h 

First.  That  all  the  inherent  power  of  the  people  for  self  govern- 
ment, not  delegated  to  the  general  gevernment,  is  reserved  to,  and 
belongs  to  the  state. 

Second.  That  of  such  reserved  powers,  the  entire  legislative 
power,  is  subject  to  no  restrictions  or  limitations,  except  such  as  are 
contained  in  the  state  constitutions. 

Third.  That  the  taxing  power  belongs  to  the  legislature,  and  is 
subject  to  no  limits  or  restrictions  outside  of  the  United  States 
and  state  constitutions. 

Fourth.  That  the  power  to  authorize  the  cousti'uction  of  works 
of  internal  improvement,  and  to  provide  for  their  construction  by 
officers  or  agents  of  the  state,  rests  with,  and  pertains  to,  the  leg- 
islature, to  be  exercised  within  its  exclusive  discretion. 

Fifth.  That  such  works  maybe  constructed  by  general  taxation, 
and  in  case  of  local  works,  by  local  taxation  ;  or  the  state  may 
aid  in  their  construction,  by  becoming  a  stockholder  in  private  cor- 
porations ;  or  authorize  municipal  corporations  to  become  such 
stockholders  for  such  jiurpose. 

Sixth.  That  raih'oads  are  public  works,  and  may  be  constructed 
by  the  state,  or  by  corporations,  and  lands  taken  for  their  use  are 
taken  for  the  public  use,  and  may  be  so  taken  on  payment  of  a 
just  compensation. 

Seventh.  That  the  legislature  is  the  exclusive  judge  in  respect 
as  to  what  Avorks  are  for  the  public  benefit ;  in  regard  to  the  ex- 
pediency of  constructing  such  works ;  and  as  to  the  mode  of  their 

a  51  Barb.  312. 

b  Clark  V.  City  of  Rochester,  &c.,  24  Barb.  489. 


422  THE  TAXING  TOWER. 

construction,  wlietlier  by  tlie  state,  or  by  private  or  municipal  cor- 
porations, in  whole  or  in  part. 

Eighth.  That  the  legislature  may  authorize  municipal  corpora- 
tions to  subscribe  to  a  stock  of  a  railroad  company,  with  the  con- 
sent antl  approval  of  the  majority  of  the  corporators  duly  ascer- 
tained. ^ 

Xhifh.  That  the  passage  of  a  law  authorizing  such  subscriptions 
to  the  stock  of  a  private  corporation,  or  to  take  effect  upon  the 
approval  or  assent  of  a  municipal  corporation  by  the  vote  of  the 
corporators,  is  not  a  delegation  of  power  to  the  corporation  to 
pass  a  law,  but  is  a  legitimate  case  of  conditional  legislation,  and 
is  entirely  Avithin  the  cUscretion  of  the  legislature. 

In  enforcing  these  propositions,  a  member  of  the  court  remarked,  a 
"  The  constitution  of  the  United  States,  and  that  of  our  own 
state,  constitute  the  only  restriction  or  limitation  of  the  legislative 
power.  It  is,  aside  from  these  limitations,  supreme,  uncontrollable 
and  omnipotent,  in  respect  to  all  other  matters  and  subjects.  The 
taxing  power,  is  one  of  the  inherent  powers  of  government,  and 
belongs  appropriately  to  the  legislative  department."  Another 
eminent  judge  in  the  same  case,  remarked  as  follows :  "  It  is  not 
denied  but  that  the  state  may  provide  by  law,  for  the  construction 
of  a  railroad  through  the  agency  of  its  own  officers,  taking  all 
lands  necessary  for  the  purpose  by  virtue  of  its  right  of  eminent 
domain  ;  or  delegate  the  power  to  build  the  road,  and  take  the 

a  Id.  480. 
Note  3. — Since  the  rule  adoi^ted  in  the  above  eighth  iH'oposition,  the  highest 
court  of  this  state,  and  also  the  court  of  the  United  States,  have  given  interpreta- 
tion of  constitutions,  and  the  subject  of  legislative  power  of  taxation  for  the 
construction  of  railroads,  and  have  carried  the  rule  beyond  what  is  laid  down  in 
this  proposition.  In  the  case  of  The  People  v.  Mitchell,  35  N.  Y.  551,  it  was 
held  that  a  county,  or  other  municipal  corporation,  may  subscribe  lor  stock  in  a 
railroad  or  other  public  improvement  if  authorized  so  to  do  by  the  legislature  : 
and  that  the  legislature  can  authorize  such  municipal  corporation  to  take  stock 
therein;  to  borrow  money  to  pay  for  the  same;  and  to  levy  a  tax  to  repay  the 
loan.  That  this  authority  can  be  conferred  in  such  a  manner  as  to  accomplish 
the  purpose,  either  with,  or  without  a  popular  vote;  and  when  they  have  author- 
ized the  act  upon  the  condition  of  receiving  the  popular  vote,  the  legislature  can 
by  retrospective  legislation,  cure  any  evils  arising  from  an  irregiilar  execution  of 
the  power.  The  same  rule,  and  in  terms  similar  and  in  almost  identical  language, 
has  been  held  by  the  Supreme  Court  of  the  United  States,  in  the  case  of  Thomp- 
son V.  Lee  County,  reported  in  3d  Wallace  Reports,  327. 


THE  T.VXIXG  rOWER.  423 

lauds  required  for  it,  to  a  private  corporation.  Nor  is  it  disputed 
that  the  state  may,  under  its  taxing  power,  charge  the  expense  of 
such  pubKc  improvement,  made  by  itself,  upon  the  citizens  of  a 
particular  locality  wliichniay  be  supposed  t(^  Ije  more  iunnediately 
benefited  by  the  improvement ;  nor  is  it  contnnerted  that  a  muni- 
cipal coi-poration  may  be  authorized  l)y  law,  to  make  such  public 
improvements  as  are  required  ])y  the  interests  of  its  locality,  and 
tax  the  citizens  of  the  locaUty  to  defray  the  expense.  The  power 
of  the  state,  to  this  extent,  is  unquestioned,  and  so  well  established 
by  long  exercise  of  it,  and  by  judicial  decisions,  as  to  render  a 
discussion  of  it  unnecessary  if  not  unprofitable," 

"  There  is  notlang  more  easy  than  to  imagine  a  thousand  tyran- 
nical things  which  the  legislature  may  do,  if  its  members  forget  all 
theii'  duties,  (hsregard  utterly  all  the  obligations  they  owe  to  their 
constituents,  and  recklessly  determine  to  trample  upon  right  and 
justice.  But  to  take  away  the  power  from  the  legislature  because 
they  may  abuse  it,  and  give  to  tlie  judges  the  right  of  controlling 
it,  would  not  be  advancing  a  single  step,  smce  the  judges  can  be 
imagined  to  be  as  coiiaipt  and  wicked  as  legislators." 

"lam  thoroughly  convinced,  that  the  words  of  the  constitution 
furnish  the  only  test  to  determine  the  validity  of  a  statute ;  and 
that  all  arguments  based  on  general  principles,  outside  of  the  con- 
stitution, must  be  addressed  to  the  x^eople,  not  to  the  courts." 

These  propositions,  and  the  conclusions  drawn  from  them,  seem 
to  be  the  views  upon  which  the  New  York  courts  have  also  pro- 
ceeded in  giving  constitutional  construction,  and  in  establishing  the 
law  of  this  state.  They  are  also  sustained,  by  the  construction 
given  by  the  national  and  other  state  courts.  * 

Note  4. — A  few  of  the  cases  favoring  the  New  York  constitution  are  as  follows: 
Fletcher  v.  Peck,  6  Cranch.  87,  where  it  was  held,  "If  a  state  legislature 
shall  pass  a  law  within  the  general  scope  of  their  constitutional  powers,  the  courl 
cannot  pronounce  it  to  be  void,  merely  because  it  is  in  their  judgment,  contrary 
to  the  principles  of  natural  justice."  The  ideas  of  natural  justice  are  regulated 
by  no  fixed  standard;  the  ablest  and  purest  men  have  diflered  iipon  the  subject; 
and  all  the  court  in  such  an  event  could  say,  would  be,  that  the  legislature,  (pos- 
sessing an  equal  right  of  opinion,)  had  passed  an  act  which,  in  the  opinion  of  the 
Judges,  was  contrary  to  abstract  principles  of  right."  In  Golden  v.  Eice,  3  Wash. 
C.  C.  K.,  it  was  said,  "  that  the  state  legislatures  may  make  such  laws  as  they  see 
fit,  unless  inconsistent  with  the  powers  exclusively  vested  in  the  government  of 
the  United  States,  or  by  some  article  of  the  federal  or  state  constitution."    In 


424  THE  TAXING  TOWER. 

Bennet  v.  Boggs,  1  Bald.  74,  it  was  said,  "We  may  think,  the  jjowers  conferred 
by  the  constitution  of  this  state,  too  great  or  dangerous  to  the  rights  of  the 
people,  and  that  limitations  are  necessary;  but  we  cannot  affix  them."  "AVe 
cannot  declare  a  legislative  act  void  because  it  conflicts  with  our  oijinions  of 
policy,  expediency  or  justice."  "  The  remedy  for  unwise  and  oppressive  legisla- 
tion within  constitutional  bounds,  is  by  appeal  to  the  justice  and  patriotism  of 
the  representatives  of  the  people.  If  this  fails,  the  people  in  their  sovereign 
capacity  can  correct  the  evil;  but  courts  cannot  assume  their  rights." 

In  the  Providence  Bank  Case  v.  Billings,  4  Peters,  514,  562,  Chief  Justice 
Slarshall  said,  "  The  power  of  legislation,  and  conseqiiently  of  taxation,  operates 
on  all  persons  and  property  belonging  to  the  body  politic.  This  is  an  original 
principle  which  has  its  foundation  in  society  itself.  It  is  granted  by  all,  for  the 
benefit  of  all.  It  resides  in  government  as  part  of  itself,  and  need  not  be  reserved 
when  property  of  any  description,  or  the  right  to  use  it,  in  any  manner  is  granted 
to  individuals,  or  corporate  bodies.  However  absolute  the  right  of  an  individual 
may  be,  it  is  still  in  the  nature  of  that  right,  that  it  must  bear  a  portion  of  the 
public  burthens,  and  that  portion  must  be  determined  by  the  legislature."  In 
Commonwealth  v.  McCloskey,  2  Rawle,  374,  the  court  say,  "  If  the  legislature 
I^ass  a  law  in  plain,  unequivocal,  and  explicit  terms,  within  the  general  scope  of 
their  constitutional  povrer,  I  know  of  no  authority  in  this  government,  to  pro- 
nounce such  an  act  void,  merely  because  in  the  opinion  of  the  judicial  tribunals 
it  was  contrary  to  the  principles  of  natural  justice ;  for  this  would  be  vesting  in 
the  court,  a  latitudinarian  authority  which  might  be  abused,  and  would  necessarily 
lead  to  collisions  between  the  legislative  and  judicial  departments,  dangerous  to 
the  well  being  of  society,  or  at  least,  not  in  harmony  with  the  structure  of  our 
ideas  of  natural  government."  In  Norris  v.  Clymer,  2  Barr.  285,  the  court  said, 
"The  constitution  allows  to  the  legislature,  every  power,  which  it  does  not  posi- 
tively prohibit."  In  Commonwealth  v.  McWilliams,  1  Jones,  (Penn.)  E.  71,  the 
court  said,  "  From  the  commencement  of  the  government,  our  representative 
bodies  have  exerted  the  unchallenged  power  to  lay  taxes,  mediately  or  immedi- 
ately, for  every  purpose  deemed  by  them  legitimate.  Among  these  purposes,  the 
construction  and  maintenance  of  roads  and  highways,  to  meet  the  necessities, 
and  to  facilitate  the  commerce  of  the  people,  have  ever  been  deemed  of  first  im- 
jjortance.  Without  these,  a  commercial  community  could  scarcely  exist.  In- 
deed, they  are  so  essential  to  the  progress  of  civilization  and  the  cultivation  of 
the  arts  of  life,  that  the  degree  of  refinement  attained  by  a  people,  may,  in  some 
•  sort,  be  measured  by  their  extent  and  condition."  "No  one  has  yet  dreamed 
of  doubting  the  validity  of  that  power  when  applied  in  maintenance  of  the  ordin- 
ary roads  of  the  country." 

In  Commonwealth  v.  Hartman,  5  Hariis,  119,  the  court  say,  "  The  legislature 
has  jurisdiction  on  all  subjects  on  which  its  legislation  is  not  prohibited.  In  ap- 
plying this  i^rinciple  to  the  present  case,"  (an  act  to  provide  for  the  establish- 
ment of  common  schools,)  "it  is  enough  to  say,  that  there  is  no  syllable  in  the 
constitution  which  forbids  the  legislature  to  provide  for  a  system  of  general  edu- 
cation, in  any  way  which  thej',  in  their  own  wisdom  may  think  best.  But  it  is 
argued,  that  for  the  purpose  of  promoting  education,  and  carrying  out  the  system 
of  common  schools,  laws  may  be  passed  which  will  work  intolerable  wrong,  and 


THE  TAXING  TOWER.  425 

produce  grievous  barJship.  The  answer  to  this  is,  that  a  decent  respect  for  a 
co-ordinate  branch  of  the  government,  compels  us  to  deny  that  any  such  danger 
can  ever  exist.  But  if  a  law,  unjust  in  its  operation,  and  nevertheless  not  for- 
bidden by  the  constitution,  should  be  enacted,  the  remedy  lies,  not  in  an  appeal 
to  the  judiciary,  but  to  the  people,  who  must  apply  the  corrective  themselves; 
they  have  not  intrusted  the  power  to  us."  In  Wilson  v.  Mayor  of  New  York,  4 
E.  D.  Smith,  G78-9,  Woodruff,  J.,  said,  "  The  power  of  the  state  to  tax  all  prop- 
erty within  its  limits,  whether  real  or  personal,  cannot  be  denied."  "  In  the  ap- 
portionment of  taxes,  and  the  assigning  to  persons  or  to  property  the  portion 
which  each  shall  contribute,  to  the  public  burthens,  the  legislature  have  the  sole 
and  exclusive  power,  of  determining  what  is  just  and  equitable,  and  upon  what 
description  of  persons,  and  ujion  what  property  within  the  state  and  in  what 
ratio,  the  imposition  shall  be  made."  "The  inquiry  is,  in  this  tribunal,  not 
what  property  might  equituhly  be  taxed,  nor  what  property  it  is  expedient  to  tax," 
&c.  In  ihe  case  of  the  Fire  Department  v.  Noble,  3  E.  D.  Smith,  441,  it  was  held 
that  a  statute  imposing  a  tax  upon  foreign  insurance  corporations  for  the  benefit 
of  the  fire  department,  as  a  condition  to  their  right  to  take  insurances,  was  not  an 
infraction  of  the  constitution  which  forbids  taking  private  property  for  public  use 
withoiit  just  compensation;  that  a  tax  upon  a  particular  business  may  be  levied 
for  the  benefit  of  a  public  charity,  and  may  be  i^aid  directly  to  the  persons  having 
the  benefit  thereof.  A  tux  may  be  legally  levied  under  a  statute  for  that  purpose 
for  losses  sustained  by  default  of  a  county  treasurer.  People  v.  Supervisors  of 
Livingston,  17  N.  Y.  480.  The  legislature  can  ap^jortion  the  public  burthens 
among  all  the  tax-paying  citizens  of  the  state,  or  those  of  a  particular  section  or 
territorial  division,  and  although  a  statute  may  be  unconstitutional  under  which 
public  expenses  are  incurred,  a  tax  may  be  properly  levied  to  meet  those  ex- 
penses. People  v.  Haws,  34  Barb.  69.  When  the  legislature  determines  that  a 
public  improvement  will  be  a  benefit  to  the  adjacent  property,  and  that  the  ex- 
penses of  making  the  same  shall  be  paid  by  the  owners  of  such  adjacent  property, 
the  courts  have  nothing  to  do  with  the  correctness  or  incorrectness  of  the  deter- 
mination, but  must  assume  the  fact  to  be  as  the  legislature  declares  it.  The  wis- 
dom or  justice  of  the  taxation,  is  not  a  subject  of  judicial  inquiry,  nor  is  the  pur- 
pose for  which  the  tax  is  imposed.  People  v.  Lawrence,  36  Barb.  177.  Taxes 
for  bounties  to  volunteers;  taxes  upon  the  owners  of  dogs,  are  legal  subjects.  A 
local  tax  upon  lands  adjacent  to  the  Long  Island  Railroad  Compan}-,  for  the 
benefit  of  that  company,  as  a  piablic  improvement,  was  held  to  be  a  legitimate 
exercise  of  the  taxing  power.  Litchfield  v.  McOmber,  42  Barb.  288.  An  act  to 
tax  the  citizens  of  the  locality  of  Utica,  to  pay  the  additional  expense  of  termina- 
ting the  Chenango  canal  at  that  place,  instead  of  W'hitesborough,  was  held  a 
l>roper  exercise  of  the  taxing  power.  Thomas  v,  Leland,  24  Wend.  65.  And 
finally,  "  The  raising  money  for  a  local  improvement  is  an  exercise  of  the  taxing 
power,  inherent  in  the  legislature ;  and  this  power  of  taxation,  implies  a  power  to 
apportion  the  tax  (territorially)  as  the  legislature  shall  see  fit,  and  moreover,  that 
this  power  of  apportionment  has  no  limit,  where  there  is  no  constitutional  re- 
straint; and  that  the  constitutional  inhibition  against  depriving  a  person  of  life, 
liberty  or  property  from  being  taken  for  public  use  without  just  compensation, 
has  no  application  to  such  a  case."     Matter  of  Trustees  of  the  N.  Y.  P.  E.  Public 

54 


42G  THE  Taxing  towee. 

School,  31N.  Y.  582-3;  Howell  v.  City  of  Buffalo,  37  N.  Y.  267;  People  v.  Smith, 
21  N.  y,  595;  People  v.  Law,  34  Barb.  494;  Thomas  v.  Leland,  24  Wend.  65; 
Li^•ingston  v.  Mayor  of  New  Y'ork,  8  Wend.  85 ;  Bank  of  Kome  v.  Village  of  Borne, 
ISN.  y.  38;  Grant  v.  Courter,  24  Barb.  232;  The  Cincinnati,  &c.,  K.  R.  Co.  v. 
Commissioners  of  Clinton  Co.,  21  Ohio,  77;  City  of  Bridgeport  v.  Honsatonic  R. 
R.  Co.,  15  Conn.  475;  People  v.  Lawrence,  3G  Barb.  177;  McCulloch  v.  Maryland, 
4  Wheat.  31 G;  and  see  United  States  v.  The  Railroad  Bridge  Company,  3  Law 
Register,  Old  Series,  617,  Per  McLean,  J. 

Opposed  to  this  view,  are  found  several  recent  decisions  of  the  courts  of  some 
of  the  western  states;  among  them  those  of  Ch.  J.  Cooley,  of  the  state  of  Michi- 
gan, in  the  case  of  the  People  ex  rel  The  Detroit  &  Howell  R.  R.  Co.  v.  The 
Township  Board  of  Salem,  in  the  supreme  court  of  that  state.  Also,  of  Ch.  J. 
Dixon,  of  the  supreme  court  of  Wisconsin,  in  the  case  of  Whiting  v.  Sheboygan 
Railway  Co.,  reported  in  American  Law  Register,  Vol.  9,  N.  S.  156;  Weeks  v.  The 
City  of  Milwaukie,  10  Wisconsin,  242.  Also  a  case  in  Iowa,  Hanson  v.  Vernon, 
reported  in  27  Iowa  R. ;  not  yet  come  to  hand,  from  a  note  of  it,  supposed  to  be 
to  the  same  effect  as  those  of  Michigan  and  Wisconsin,  which  are  conceded  to 
be  the  ablest  opinions  opposed  to  the  doctrine  which  we  have  shown  to  be  the 
established  law  of  New  York. 

It  does  not  become  us  to  deny,  or  controvert  the  soundness  of  views  expressed 
in  these  opinions; — to  qi;estion  the  wisdom  of  those  states,  in  adopting  a  state 
policy  in  accordance  with  those  judicial  expressions.  We  do  not  claim  for  the 
state  of  New  York  a  superior  wisdom  in  the  adoption  of  the  entirely  opposite  view 
of  policj',  or  in  the  construction  given  by  the  judiciary  of  the  taxing  power,  under 
a  somewhat  different  constitution,  and  as  to  what  constitutes  a  public  use  of  prop- 
erty, and  the  power  of  the  legislature  to  declare  it; — nor,  w^hether  the  judicial  de- 
partment of  other  states  may  not  jjossess  the  power  to  control  the  legislative 
department,  and  deny  them  the  power  to  declare,  whether  their  citizens,  and 
which  of  them,  shall  bear  the  burthens  of  taxation,  to  pay  the  expenses,  of  so- 
called  public  improvements. 

These  are  questions  of  state  policy,  as  to  which,  each  independent  state,  in  its 
sovereign  capacity,  must  determine  for  itself.  The  judicial  department  of  each 
such  state,  are  the  interpreters  of  their  own  local  constitutions  and  statutes,  and 
we  therefore  assume,  that  their  courts,  have  correctly  enunciated  in  those 
opinions,  the  law  which  is  to  control  the  action  of  those  states. 

Biit  inasmuch  as  the  highest  judicial  authority  of  our  own  state,  under  our  own 
local  constitution,  have  given  a  different,  and  the  ojiposite  interpretation  of  our 
own  constitution  and  statutes ;  and  as  the  other  departments  of  our  own  state 
government,  have  declared,  adopted  and  practiced  a  different  state  policy,  we 
claim  that  the  citation  of  the  decisions  of  other  states  which  have  given  a  differ- 
ent interpretation  to  the  legislative  power  from  that  established  in  this  state, 
(however  wise  such  other  rule  might  be  as  an  original  question  to  be  settled)  is 
calculated  to  mislead  and  confuse  the  profession,  and  the  citizen  whose  private 
interest  dictates  the  desire  lor  a  different  construction.  We  may  add  to  the  cases 
above  cited,  as  in  degree,  sustaining  them.  Griffith  v.  Indiana  &  Ohio  R.  R.,  20 
Ohio,  609,  and  dicta  of  Judge  Patterson,  2  Dallas,  304,  of  Judge  Chase  in  same 


THE  TAXIIsG  TOWER.  427 

and  3  Dallas,  388 ;  and  Sweet  v.  Ilulburt,  in  the  supreme  ^ui^^iol  itiis  state,  before 
referred  to,  and  commented  upon,  not  appealed-to  the  court  of  dernier  resort. 

Did  our  limits  permit,  we  t-hould  gladly  transfer  the  able  exposition  of  the  h.\i 
of  constitutional  iuterpretation,  given  in  the  opinions  of  the  courts  of  these  west- 
ern states,  to  which  wo  have  referred  in  this  work.  It  may  be  sufficient  however, 
briefly  to  refer  to  the  points  of  agreement  and  of  departure,  in  the  view  s  of  con- 
struction of  the  constitution  of  those  states  and  our  own. 

1.  They  agree  with  us,  that  taxation  for  the  purpose  of  taking  the  private  prop- 
erty of  one  person,  to  bestow  it  upon  another,  is  unconstitutional  and  void. 

2.  They  agree  with  us,  that  the  legislature  do  possess  the  power  to  grant  the 
right  to  take  private  property  for  public  purposes. 

3.  While  they  agree,  that  the  legislature  may  grant  the  right  to  take  property 
by  the  exercise  of  omiueut  domain,  to  a  railroad  corporation,  and  though  they 
agree  to  the  grant  of  power  by  the  legislature  to  tax  for  puhllc  purposes,  yet  they 
hold,  that  a  railroad  corporation,  whose  road  is  constructed  by  itself,  is  exclu-' 
sively  private  property,  owned,  controlled,  and  operated  by  a  private  corporation, 
for  the  benefits  of  its  own  members,  and  that  it  is  for  the  judiciary,  and  not  for 
the  legislature  to  determine  whether  or  not  the  purpose  is  a  public  one;  that  an 
act  of  the  legislature  declaring  the  purpose  of  such  a  railroad  to  be  public,  and 
authorizing  taxation  in  its  iiid,  is  unconstitutional  and  void.  In  this,  it  is  seen, 
the  cases  are  in  direct  coutlict  with  the  New  York  authorities.  People  v.  Law- 
rence, 3G  Barb.  177;  supra  and  other  cases  cited,  where  it  is  held  that  the  power, 
•wisdom,  or  justice  of  taxation  upon  persons  benefited  by  such  improvements,  is 
not  a  subject  of  judicial  inquiry,  but  belongs  to  the  legislative  department.  This 
is  the  first  great  point  of  divergence. 

It  is  no  part  of  our  purpose  to  compare  the  soundness  of  the  opinions  of  the 
judiciary  of  one  sovereign  state  with  those  of  another.  The  difference  in  their 
local  constitutions  may  be  sufficient  to  account  for  the  dilference  in  results.  The 
right  of  eminent  domain  and  the  taxing  power  are  entirely  different,  the  one  from 
the  other,  in  the  method  of  exercising  their  respective  powers,  though  each  is 
called  into  use  for  public  purposes.  Nor  is  it  any  part  of  our  design  here  to  en- 
quire into  the  reason,  or  to  explain  the  apparent  inconsistency  in  the  proposi- 
tion, that  the  legislative  department  do  possess  the  authority  and  may  declare  the 
purpose  of  a  railroad  corporation  to  be  jnihlic,  so  as  to  enable  them  to  exercise  the 
right  of  eminent  domain  in  taking  private  property;  but  have  no  power  to  declare 
the  purpose  of  the  same  project  public,  so  as  to  authorize  taxation  upon  the  per- 
sons to  be  benefited  by  the  construction  of  their  road.  The  curious  searcher  for 
information  on  these  points,  will  seek  the  explanation  in  the  adjudications,  as 
manifested  in  the  able  enunciation  of  the  reasons  contained  in  the  opinions  re- 
ferred to,  upon  which  these  difi'erent  sovereignties  seem  to  have  adopted  as  theii 
respective  state  policies. 


428  OF  CONSTITUTIONAL  PROTECTION. 


CIIAPTEE  XIII. 

OF  THE  CONSTITUTIONAL  PROTECTION,  THAT  LIFE,  LIBERTY,  AND 
PROPERTY  BE  NOT  TAKEN  "WITHOUT  DUE  PROCESS  OF  LAW. 

Lite,  liberty,  and  property  of  a  citizen  may  be  forfeited  and 
lost,  hut  not  icithout  due  ]3rocess  of  laic.  This  protection  is  con- 
tained inboth  the  national  and  state  constitutions,  a  It  originated 
in  Magna  Charta,  h  and  constitutes  one  of  its  fundamental  articles, 
in  which  it  is  declared,  that  "no  free  man  shall  be  taken,  or 
imprisoned,  or  dissiezed  of  his  freehold,  or  liberties,  or  fi'ee  cus- 
toms, or  be  out-lawed,  or  exiled,  or  otherwise  destroyed,  nor  will 
we  pass  upon  him  nor  condemn  him,  but  by  lawful  judgment 
of  his  peers,  or  by  the  law  of  the  land."  "  The  judgment  of  his 
peers,"  was  by  the  law  of  England,  the  trial  of  a  man  by  a  jury 
of  his  equals,  and  in  this  country,  means  a  trial  by  jury,  who  are 
called  the  peers  of  the  party  accused.  This  question  was  briefly 
and  partially,  but  indirectly  considered  in  a  former  chapter. 

Our  ancestors  brought  these  pri\dleges  with  them  to  America 
as  their  birthright  and  inheritance,  and  as  a  part  of  the  common 
law,  Avhich  then  interposed  its  guardianship,  and  threw  around 
them  on  every  side,  its  protection  against  the  approaches  of  arbi- 
trary power.  These  privileges,  as  rights,  are  now  incorporated 
not  only  into  all  our  constitutions  state  and  national,  but  will  be 
found  in  all  the  statutes  of  the  states  made  in  subordination  to 
the  fundamental  law,  recognizing  and  confirming  these  rights  in 
the  citizen ;  and  all  statutes  are  void,  and  without  effect,  which  are 
found  to  be  obnoxious  to  these  solemnly  secured  privileges. 

"  That  government  can  scarcely  be  deemed  to  be  free,  where 
the  rights  of  property  are  left  solely  dependent  uj)on  the  will  of  a 
legislative  body,  without  any  restraint.  The  fundamental  maxims 
of  a  free  government  seem  to  require,  that  the  rights  of  personal 

a  Const.  United  States  aniendmeut  1,  Art.  4  ;  Const.  New  York,  Art.  1,  §  6. 
h  9  Hen.  Ill,  ch.  29. 


CONSTITUTIONiVL  RIGHTS.  429 

liberty  and  private  property  should  be  held  sacred.  At  least  uo 
court  of  justice  in  this  country  would  bo  warranted  in  assuming 
that  the  power  to  violate  and  disregard  them,  a  power  so  repugnant 
to  the  common  principles  of  justice  and  civil  hberty,  lurked  under 
any  general  grant  of  legislative  authority,  or,  ought  to  be  imphed 
from  any  general  expressions  of  the  will  of  the  people.  The 
people  ought  not  to  be  presumed  to  part  with  rights  so  vital  to 
then-  security  and  well  being,  without  very  strong  and  direct  ex- 
pressions of  such  an  mtention."  a 

The  term,  right,  m  civil  society,  Chancellor  Kent  defines  to  be,  6 
"  that  which  any  man  is  entitled  to  have,  or  to  do,  or  to  require 
from  others  -within  the  limits  prescribed  by  law."  The  absolute 
rights  of  uidividuals  may  be  resolved  into  the  right  of  personal 
security — the  right  of  personal  liberty — and  the  right  to  acquire 
and  enjoy  property.  These  rights  have  been  justly  considered 
and  frequently  declared,  by  the  people  of  this  country,  to  be 
natural,  inherent,  and  unaUenable.  The  effectual  security  and 
enjoyment  of  them  depend  upon  the  existence  of  civil  liberty  ; 
and  that  consists  in  being  protected  and  governed  by  laws  made, 
or  assented  to,  by  the  representatives  of  the  people,  conducive  to 
the  general  welfai'e." 

Before  the  adoption  of  our  American  constitutions,  the  words 
"  by  the  law  of  the  land,"  had  a  well  defined  meaning  at  common 
law,  and  had  been  rendered,  "  due  process  of  law."  c  Our  con- 
stitutions adopt  the  veiy  words  of  this  common  law  definition,  and 
mean  undoubtedly  by  that,  that  to  work  a  change  of  property  fi'om 
one  private  person  to  another,  some  proceeding  must  be  had  in  a 
court  of  justice,  or  before  magistrates  ;  at  least  that  the  legislature 
should  have  no  power  to  deprive  one  of  his  property,  and  transfer 
it  to  another,  by  enacting  a  bargain  between  them,  unless  it  be  in 
the  hands  of  the  latter,  a  trust  for  public  use."  d 

In  a  subsequent  statute,  passed  in  the  reign  of  Edward  III, 
I\Iagna  Charta  in  this  respect,  was  itself  changed.  The  clause, 
"  but  by  the  law  of  the  land,  or  the  judgment  of  liis  peers,"  was 
altered  to  read  thus  :  without  being  brought  to  answer  by  due 
process  of  law." 

a  Wilkinson  v.  LeLmd,  3  Peters  G37,  Per  Stoiy  J.  h  2  Com.  1. 

c  2  Coke's,  lust.  50.  d  Mfttter  of  John  and  Cherry  street,  19  Wend.  G7G. 


^30  DUE  PEOCESS  OF  LAW. 

The  ^yovds  "due  ijrocess  of  kac,'' said  Judge  Bronson, a  cannot 
uieau  less  than  a  prosecution  or  suit  instituted  and  conducted 
according  to  the  prescribed  forms  and  solemnities  for  ascertaining 
guilt,  or  determining  the  title  to  property.  It  will  be  seen  that 
the  same  measure  of  protection  against  legislative  encroaclunent, 
'  is  extended  to  life,  hberty  and  property ;  and  if  the  latter  can  be 
taken  without  forensic  trial  and  judgment,  there  is  no  security  for 
the  others.  If  the  legislature  can  take  the  property  of  A.  and 
transfer  it  to  B.,  they  can  take  A.  himself,  and  either  shut  him  up 
in  prison,  or  put  him  to  death.  But  none  of  these  things  can  be 
done  by  mere  legislation.     There  must  be  "  due  process  of  law." 

What  then  is  due  process  of  law?  The  definition  given  of  this 
clause  that  has  been  more  fi'equently  quoted,  or,  perhaps  adopted 
by  the  courts  than  any  other,  is  that  given  by  Mr.  Webster,  b 
who  said  :  "  By  the  law  of  the  land,  is  most  clearly  intended  the 
general  law,  which  hears  before  it  condemns,  and  proceeds  upon 
inqmiy-,  and  renders  judgment  only  after  trial.  The  meaning  is, 
that  every  citizen  shall  hold  his  life,  liberty,  proj)erty  and  immu- 
nities imder  the  protection  of  general  rules  which  govern  society. 
Every  thing  which  may  pass  under  the  form  of  legislative  enact- 
ment, is  not  therefore  the  law  of  the  land."  "A  construction  that 
would  do  this,  would  render  constitutional  provisions  of  the  highest 
importance,  completely  inoperative  and  void.  It  would  tend  di- 
rectly to  establish  the  union  of  all  powers  in  the  legislature.  There 
would  be  no  general  permanent  law  for  courts  to  administer,  or 
for  man  to  live  under.  The  administration  of  justice  would  be  an 
empty  form,  an  idle  ceremon3^  Judges  would  sit  to  execute  legis- 
lative judgments  and  decrees ;  not  to  declare  the  law,  or  to  admiu' 
ister  the  justice  of  the  country."  o 

To  give  this  clause,  therefore,  any  value,  it  must  be  under- 
stood to  mean,  that  no  person  shall  be  deprived,  by  any  form  of 
legislation,  or  governmental  action,  of  either  life,  liberty,  or  pro- 
perty, except  as  a  consequence  of  some  judicial  proceeding  appro- 
priately and  legally  conducted.  It  follows,  that  a  law,  which,  by 
its  own  inherent  force,  extinguishes  rights  of  property,  or  compels 

a  Taylor  v.  Porter,  4  Hill  147  ;  Embury  v.  Conner,  3  N.  Y.  517. 
h  Dartmouth  College  case,  4  Wheat,  519,  581. 
c  Westervelt  v.  Gregg,  12  N.  Y.,  209. 


DUE  TROCESS  OF  LAW.  431 

their  destruction,  without  any  legal  process  whatever,  comes  di- 
rectly in  conflict  with  the  constitution,  a 

One  of  the  means  attempted  by  which  a  citizen  is  sometimes  to 
be  deprived  of  his  property,  or  of  his  personal  liberty,  are  ex  post 
faclo  laws,  or  laws  retrospective  in  their  nature.  The  New 
York  C(jde  of  18-49,  section  400,  in  form,  authorized  an  appeal 
"  in  any  suit  in  equity,  pending  in  the  Supreme  Court  on  the  first 
day  of  July  1847."  Under  this  act,  a  party  brought  an  appeal  to 
the  Court  of  Appeals  from  a  final  decree  in  equity,  Avhere  the 
time  previously  allowed  by  law  for  appeahng  had  expired,  and  the 
decree  had  been  executed.  It  was  held  by  Jewitt,  J.,  b  that  this 
statute  which  contingently  deprived  a  person  of  property,  the  right 
to  which  was  perfect  under  prior  laws,  was  within  the  prohibition 
of  the  constitution.  The  direct  effect  of  this  provision  of  tlie  Code, 
if  valid,  was  the  gi'anting  of  a  new  trial  or  hearmg  upon  all  tlie 
(questions  both  of  law  and  evidence  arising  in  the  case,  after  it  had 
been  lost  by  neglect  of  the  complainant  under  the  provision  of  law 
as  it  existed  at  the  time  the  decree  was  made,  and  after  it  had 
become  final  upon  the  rights  of  the  parties  involved  in  the  suit, 
and  the  defendant  had  acquhed  possession  of  the  fruits  of  the  lit- 
igation by  due  execution  upon  it.  It  was  therefore  held  that  the 
act  was  invaHd  as  contrary  to  the  clause  in  article  1  section  6,  of 
the  constitution  of  this  state,  which  provides,  that  "no  'person  shall 
he  deprived  of  life,  liberty  or  property,  icitJiout  due  process  of  law." 
It  was  in  effect,  annulling  a  complete  and  final  decree  by  which 
property  had  been  acquired  and  possessed.  Contingently,  it  not 
only  deprived  such  person  of  the  property  thus  acquired,  but  com- 
pelled hun  to  pay  to  his  adversary,  such  sum  of  money,  as  the  ap- 
pellate court  might  detcrmme  he  ought  to  pay.  The  money  which 
had  been  adjudged  to  be  paid  by  the  decree,  and  received  by  the 
defendant  under  it,  was  his  property  in  a  legal  sense,  at  the  time  of 
the  passing  the  act,  and  though  it  did  not  absolutely  deprive  the 
party  of  the  money  decreed  to  hun,  contingently  it  had  that  effect. 

So  an  act  of  congress  passed  m  1865,  requiring  attorneys  and 
counsellors  at  law,  to  take  an  oath :  First.  That  he  had  never 
voluntarily  borne  anns  against  the  United  States  since  he  was  a 

a  Wyndhiun  v.  The  People,  13  N.  Y.  434. 
tBurch  V.  Newbury,  10  N.  Y.,  31i 


432  RIGHT  OF  TEIAL  BY  JURY. 

citizen  thereof.  Second.  That  he  had  not  vohmtarily  given  aid, 
counsel,  countenance,  or  encouragement  to  persons  engaged  in 
anned  hostihty  thereto.  TliinJ.  That  he  has  never  sought,  ac- 
cepted, or  attempted  to  exercise  the  functions  of  any  office  what- 
soever under  the  authority,  or  pretended  authority,  in  hostihty  to 
the  United  States.  Fourth.  That  he  has  not  yiekled  a  vohmtary 
support  to  any  pretended  government,  authority,-  power  or  consti- 
tution within  the  United  States,  hostile,  or  inimical  thereto ;"  was 
held  to  be  in  violation  of  the  provisions  of  the  constitution  ;  not 
only  as  being  ex  post  facto  law,  but  also  as  against  the  inhibition 
against  the  passage  of  bills  of  attainder,  a  It  was  said,  that  this 
act  operated  as  a  legislative  decree,  judicial  in  its  character,  of 
perpetual  exclusion  against  a  class  of  citizens  for  past  transactions ; 
that  an  exclusion  from  any  of  the  professions,  or  any  of  the  ordin- 
ary avocations  of  life  for  past  conduct,  could  be  regarded  in  no 
other  light  than  as  a  punishment  for  such  conduct. 

The  trial  by  jury,  especiaUy  in  all  criminal  cases,  is  justly  dear 
to  the  American  -peo]Ae.  It  has  always  been  an  object  of  deep 
interest  and  solicitude,  and  every  encroachment  upon  it  has  been 
watched  with  great  jealousy.  The  right  to  such  a  trial,  as  is  seen, 
is  secured  by  being  incorporated  into  the  federal  constitution,  into 
the  constitution  of  tliis  state,  and  it  is  behoved  into  the  constitu- 
tion of  every  state  in  the  Union.  It  is  said  to  have  been  one  of 
the  strong  objections  originaUy  taken  against  the  constitution  of 
the  United  States,  that  there  was  the  omission  to  provide  for  the 
right  of  trial  by  a  jury  in  all  civil  cases.  So  strongly  was  this  ob- 
jection pressed,  that  its  advocates,  after  the  adoption  of  the  orig- 
inal, were  able  to  secure  tliis  right  in  a  somewhat  qualified  sense 
)j  the  seventh  amendment  made  thereto,  as  proposed  by  congress, 
which  afterwards  received  the  assent  of  the  people,  and  so  estab- 
lished its  importance,  as  a  fundamental  guaranty  to  what  was  re- 
garded as  the  rights  and  liberties  of  the  people,  h  The  qualifica- 
tion however,  was  first,  to  cases  where  the  value  of  the  controversy 
exceeded  twenty  dollars,  and  second,  the  implication  arising  from 
the  language  "shall  be  preserved,"  as  qualifying  it  to  such  cases 
of  trial  by  jury  as  existed  at  common  law  at  the  time  and  prior  to 

a  Matter  of  Garland,  reported  in  32  How.  Pr.  R.  241. 
b  Parsons  v.  Bedford,  3  Peters,  445. 


RIGHT  OF  TI:LVL  BY  JURY.  433 

the  adoption  of  the  coustitution  that  is,  the  existing  law  was  "  prc- 
served."  The  same  provision  in  effect  is  secured  by  our  state  con- 
stitution. "  Tlic  trial  by  jury  in  all  cases  in  which  it  has  hereto- 
fore been  used,  shall  remain  inviolate  forever."  a 

Beyond  the  reasons  ^\  liich  might  be  advanced  by  jurists  of  the 
greatest  experience  as  to  the  most  judicious  modes  of  trial  in  cases 
not  criminal,  there  has  ever  existed  in  the  minds  of  the  mass  of 
citizens,  a  tenacity  of  opinion  in  favor  of  the  system  of  trial  by 
jury ;  they  insist  upon  it  as  one  of  the  gi'cat  bulwarks  of  civil  and 
political  hberty,  and  they  are  ever  watching  it  with  unceasing 
jealousy  and  sohcitude.  It  is  claimed,  that  the  same  reasons 
which  secured  a  trial  by  jury  in  criminal  cases ;  which  was  to  pro- 
tect against  oppression  and  tyranny  on  the  part  of  rulers ;  and  from 
violence  ^nd  viudictiveness  on  the  part  of  the  people,  under  cir- 
cumstances of  excitement  and  passion ;  demands  a  conespondhig 
protection  where  their  personal  liberty,  property,  or  cliaracter  are 
involved ;  that  at  common  law  these  rights  came  down  to  them  as 
a  fundamental  right  secured  by  Magna  Charta,  and  is  secured  by 
the  provision  m  our  own  fundamental  law,  that  no  man  shall  be 
aiTCsted  or  imprisoned,  or  deprived  of  life,  liberty  or  property  ex- 
cept by  the  judgment  of  his  peers,  or  by  the  law  of  the  land.  And 
this  claim  as  to  a  class  of  actions,  has  been  especially  endorsed  by 
our  highest  state  court  in  a  recent  case,  in  which  it  was  said,  h 
The  wisdom  of  the  time-honored  nile  of  the  common  law  which 
refers  questions  of  fact  to  the  jurors,  and  questions  of  law  to  the 
judge,  is  not  more  conspicuous  in  an}-  class  of  civil  cases,  than  in 
those  wliich  involve  questions  of  negligence.  Cases  of  that  nature 
fi'equently  come  before  the  courts,  in  wliich  men. of  equal  intelh- 
gence  and  judgment  difter  in  their  conclusions,  simply  because 
they  differ  in  experience  and  habits,  in  temperament  or  mental 
organization.  That  average  judgment  which  is  the  result  of  the 
deliberations  of  twelve  men  of  ordinary  sense  and  experience  is 
recognized  by  our  jury  system  as  a  juster  standard  than  the  judg- 
ment of  one  man,  of  equal  experience  and  sense,  in  the  determina- 
tion of  questions  of  fact,  and  it  is  especially  valuable  in  the  de- 

a  Murphy  v.  The  People,  2  Cow.  81G;    Jacksou  v.  The  People,  id.  819;  Living- 
Btoii  V.  Mayor,  8  "Wend.  99;  Colt  v.  Eves,  12  Conn.  251. 
6  AVillis  V.  Loug  Island  11.  E.  Co ,  34  N.  Y.  C79. 

55 


43-i  EIGHT   OF  TKIAL  BY  JUEY. 

cisiou  of  the  question  of  negligence.  On  tlie  trial  of  an  issue  of 
that  nature,  if  there  is  an3^  doubt,  however  shght,  either  as  to  "what 
facts  are  established  by  the  testimon}',  or  as  to  the  conclusion  with 
respect  to  the  fact  of  negligence  that  may  be  drawn  legitimately 
from  the  circumstances  proved  by  the  average  of  men  of  common 
sense,  ordinary  experience,  and  fair  intentions,  the  case  should 
not  be  taken  fi'om  the  jury.  It  is  only  where  the  case  is  entirely 
clear  upon  the  testimony ;  where  there  is  no  rational  doubt,  either 
as  to  the  cu'cumstances  proved,  or  as  to  the  conclusions  of  fact 
which  may  be  properly  drawn  from  them,  that  a  judge  is  justified 
in  deciding  a  question  of  negligence  as  matter  of  law.  But  tliis 
view  is  perhaps  more  a  question  of  practice,  than  of  constniction, 
though  it  partakes  of  the  spirit  of  the  constitutional  protection. 

An  unlimited  power  in  a  constitution  creatmg  a  judicial  depart- 
ment, and  to  constitute  courts,  includes  in  it,  the  power  to  pre- 
scribe a  mode  of  trial ;  consequently,  if  nothing  was  said  in  the 
constitution  on  the  subject  of  juries,  the  legislature  would  be  at 
liberty  either  to  adopt  the  system  of  trial  by  jury,  or  to  let  it  alone. 
So  far  as  criminal  cases  are  concerned,  in  both  the  national  and 
state  constitutions,  the  question  is  settled  by  express  injunction, 
but  so  far  as  regards  civil  cases,  the  national  constitution  was 
originally  silent,  and  by  the  constitution  of  this  state,  the  right  of 
the  legislature  to  direct,  is  qualified  by  limitation  to  cases  in  which 
it  therefore  had  been  used.  It  had  been  claimed  that  the  specifi- 
cation in  the  national  constitution  of  an  obligation  to  tiy  all  crim- 
inal cases  by  jury,  by  the  rales  of  construction,  excluded  the  obh- 
gation  to  try  civil  causes  in  the  same  way,  a  though  it  did  not 
abridge  the  power  of  the  legislature  to  appoint  that  mode.  This 
was  amended  afterwards,  as  has  been  stated,  by  the  seventh  amend- 
ment, with  a  qualification.  The  pretence  therefore,  either  that  it 
is  the  constitutional  right  of  the  citizen  to  have  every  case  tried  by 
u  jury,  or,  that  the  right  of  trial  in  civil  cases  is  denied  by  impli- 
cation of  the  constitution,  is  without  foundation. 

It  may  therefore  be  stated,  that  jury  trials  are  nowhere  abol- 
ished, in  national  or  state  constitutions,  and  with  equal  certainty 
it  may  be  stated,  that  in  most  of  the  civil  controversies  that  arise 
between  individuals,  in  which  the  great  body  of  the  people  are 

a  Federalist,  by  Hamilton,  No.  83. 


MGIIT  OF   TKI.VL  EY  JUKY.  435 

likuly  U)  bu  interested,  the  trial  by  jury  as  an  institution,  will  ro 
niaiji  as  heretofore,  and  in  the  sitiiation  in  -whicli  it  is  placed  l)y 
the  state  constitutions. 

At  the  time  of  the  adoption  of  these  provisions  in  the  national 
and  state  constitutions,  throughout  the  Union,  and  in  the  several 
states,  the  connnon  law  was  the  basis  of  our  jurisprudence,  and 
was  probably  that  of  the  new  states  since  received  into  the  Union. 
But  it  may  as  well  be  remarked  here,  that  the  provision  in  the 
United  States  constitution  is  only  intended  for  proceedings  under 
acts  of  congress,  and  does  not  apply  to  actions  m  state  courts,  a 

The  phrase  "  common  law,"  found  in  this  clause  of  the  consti- 
tution of  the  United  States,  is  used  in  contradistinction  to  "equity" 
and  "admiralty"  and  "'maritime"  jurisprudence.  The  constitu- 
tion had  declared,  in  the  third  article,  "  that  the  judicial  power 
shall  extend  to  all  cases  in  law  and  equity  arising  under  that 
constitution,  the  laws  of  the  United  States,  and  treaties  made  or 
which  shall  be  made  under  their  authority,  Arc,"  and  to  all  cases 
of  admu-alty  and  maritime  jurisdiction.  It  is  well  known  that  in 
civil  cases,  in  coiu'ts  of  equity,  and  admiralty,  juries  do  not  inter- 
vene, and  that  courts  of  equity  use  the  trial  by  jury  only  in  ex- 
traordinary cases,  to  inform  the  conscience  of  the  court.  "NMien 
therefore  we  find  that  this  amendment  requires  that  the  right  of 
trial  by  jury  shall  be  preserved  in  suits  at  "  common  law  "  the 
natural  conclusion  is,  that  this  distinction  was  present  to  the 
minds  of  the  fi'aniers  of  the  amendment.  By  common  law,  they 
meant  what  the  constitution  denominated  in  the  third  article, 
"law,"  not  merely  suits  whicli  the  common  law  recognized  among 
its  old  settled  proceedings,  but  suits  in  which  legal  rights  were  to 
be  ascertained  and  determined,  in  contradistinction  to  those,  where 
equitable  rights  alone  were  recognized,  and  equitable  remedies 
were  administered ;  or  where,  as  in  the  admu-alty,  a  mixture  of 
])ublic  law,  and  of  maritime  law,  and  equity,  was  often  found  m 
the  same  suit.  Probably  there  were  few,  of  any,  states  in  the 
union,  in  which  some  new  legal  remedies  differing  from  the  old 
common  law  forms  were  not  in  use;  but  in  which,  however,  the 
trial  by  jury  intervened,  and  the  general  regulations  in  other 
respects,  were  according  to  the  course  of  the  common  law.     Pro- 

a  Colt  V.  Eves,  supni;  Livingstou  v.  Moore,  7  Peters  E.  551. 


I 


4oG  EIGHT  or  TKL\L  BY  JURY. 

ceedings  in  case  of  partition,  and  of  foreign  and  domestic  attach- 
ments, miglit  be  cited  as  examples,  variously  adopted  and  modified. 

In  a  just  sense,  then,  the  amendment  may  be  well  constmed  to 
embrace  all  suits,  which  are  not  of  equity  and  admiralty  jurisdic- 
tion, whatever  may  be  the  pecuUar  form  which  they  may  assume 
to  settle  legal  rights.  ^Vnd  congress  seems  to  have  acted  with  refer- 
ence to  this  exposition  in  the  judiciary  act  of  1789,  ch.  20,  (which 
was  contemporaneous  with  the  proposed  amendment ;)  for  in  the 
ninth  section,  it  is  provided,  that,  "  the  trial  of  issues  of  fact  in 
the  district  court  in  all  causes,  except  civil  causes  of  admhalty 
and  maritime  jurisdiction,  shall  be  by  jury  ; "  and  in  the  twelftli 
section  it  is  pro\dded,  that  "  the  trial  of  issues  in  fact  in  the  cir- 
cuit courts,  shall  in  all  suits,  excej)t  those  of  equity  and  admiralty 
and  maritime  jurisdiction,  be  by  jury  ;  and  again  in  the  tlhrteenth 
section,  it  is  provided,  that  "  the  trial  of  issues  in  fact  in  the 
supreme  court  in  all  actions  at  law  against  citizens  of  the  United 
States,  shall  be  by  jury." 

The  same  constniction  in  effect  was  given  to  a  similar  constitu- 
tional provision  in  the  state  of  Pennsylvania,  in  the  following 
words :  "  Trials  by  jmy  shah  be  as  heretofore,  and  shall  remain 
inviolate."  At  the  time  of  the  adoption  of  that  constitution,  jus- 
tices had  jmisdiction  in  actions  not  exceeding  ten  pounds.  The  leg- 
islature of  that  state,  by  an  act  increased  this  jurisdiction  to  twenty 
pounds,  and  imposed  certain  liabilities  to  courts,  and  to  parties 
in  certain  circumstances,  who  demanded  trials  by  jury  in  that  class 
of  cases.  This  latter  act  was  claimed  to  be  unconstitutional.  The 
court  held,  a  that  though  ^the  legislature  could  not  constitutionally 
impose  any  provisions  substantially  restrictive  of  the  right  of  trial 
by  jury,  they  might  give  existence  to  new  forums  ;  and  they  might 
modify  the  pov/ers  and  jurisdiction  of  former  courts,  in  such  in- 
stances as  are  not  interdicted  by  the  constitution  from  which  their 
legitimate  powers  are  derived ;  still,  the  sacred,  inherent  right  of 
every  citizen,  atrial  by  jury,  must  be  preserved.  "  It  shall  remain 
inviolate  as  heretofore." 

This  provision,  securing  to  the  citizen  his  right  and  privileges, 
unless  deprived  of  them  "  by  due  process  of  law,"  was  designed,  says 
Denio,  l.,h  "To  protect  the  citizen  against  all  mere  acts  of  power, 

a  EmerK'k  v.  Harri«,  1  Bimicy,  424.  h  Wcstcrvelt  v.  Gregg,  12  N.  Y.  212. 


DUE  TROCESS   OF  lAW.  -137 

whether  flowing  from  the  legi.skitive  or  executive  branches  of  the 
government.  It  does  not  of  course  touch  the  right  of  the  state  to 
appropriate  private  property  to  pubhc  use  upon  making  due  com- 
pensation, which  is  fully  recognized  in  another  paii  of  the  consti- 
tution ;  but  no  power  in  the  state  can  legally  confer  upon  one  per- 
son or  class  of  persons,  the  property  of  another  person  or  class, 
without  their  consent,  whatever  motives  of  policy  may  exist  in 
favor  of  such  transfer."  To  give  this  clause,  "  due  proce.ss  of  law," 
its  true  and  proper  value  to  the  citizen,  it  nmst  be  made  to  mean, 
that  no  person  shall  bo  deprived,  l)y  any  form  of  legislation,  or 
governmental  action,  of  either  life,  liberty,  or  property,  except  as 
the  consequence  of  some  judicial  proceeding,  appropriately  con- 
ducted. It  follows,  that  a  law,  which  by  its  own  inherent  force 
extinguishes  rights  of  propert}',  or  compels  their  extinction,  with- 
out any  legal  process  whatever,  comes  directly  in  conflict  with  the 
constitution,  a 

The  meaning  of  this  provision,  then,  according  to  its  best  inter- 
pretation by  judicial  authorit}',  as  well  as  history  is,  that  no  mem- 
ber of  the  state  shall  be  disfranchised,  or  deprived  of  any  of 
his  rights  or  privileges,  unless  the  matter  shall  be  adjudged  against 
him  upon  trial  had  according  to  tlie  course  of  the  common  law  ; 
he  is  to  be  secured  the  benefit  of  those  rules  by  which  judicial 
trials  are  regulated,  and  to  place  those  rules,  beyond  the  reach  of 
legislative  subversion.  It  is  thus,  that  these  rules  are  incorporated 
into  the  constitution  itself,  and  made  thereby  a  part  of  the  para- 
mount law.  Trials,  therefore,  at  least  such  as  are  criminal,  are  to 
be  regulated  and  conducted  in  their  essential  features,  not  by  statute 
but  by  common  law.  This  is  the  constitutional  guarant}-.  "These 
are  but  the  rules  which  reason  applies  to  the  investigation  of  truth, 
and  are  of  course,  unchangeable."  There  has  been  in  England, 
and  in  this  country,  a  concurrence  of  opinion  and  holding,  that  all 
those  fundamental  rules  of  practice  and  evidence,  which  have  gen- 
erally been  deemed  essential  to  the  due  administration  of  justice, 
and  which  have  been  acted  upon  and  enforced  by  all  their  common 
law  courts  for  centuries,  should  be  placed  by  the  constitution 
beyond  the  reach  of  legislation."  h 

a  Wyndham  v.  The  People,  13  N.  Y.  43i. 
6  Id.  447. 


438  EIGHT   OF  TEI.\L  BY  JURY. 

So  far  as  this  provisiou  includes  the  right  of  trial  by  jury  in 
criniual  cases,  it  is  hardly  necessary  that  it  be  further  discussed. 
The  express  provisions  in  the  fifth  and  sixth  articles  of  the  first 
amendment  of  the  constitution  of  the  United  States,  which  con- 
tain the  jjrovision  we  have  been  examining,  are  all  that  need  be 
said  on  that  subject.     The  whole  of  which  are  as  follows  : 

Article  5.  "  No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  upon  presentment  or  indictment 
of  a  grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  militia,  when  in  actual  service,  in  time  of  war,  or  public 
danger ;  nor  shall  any  j)erson  be  subject  for  the  same  offence,  to 
be  twice  put  in  jeopardy  of  hfe  or  limb  ;  nor  shall  be  compelled  in 
any  criminal  case,  to  be  a  witness  against  himself ;  nor  be  deprived 
of  hfe,  hberty,  or  property  without  due  process  of  law ;  nor  shall 
private  property  be  taken  for  public  use,  without  just  compensa- 
tion." 

Article  6.  "  In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial  jury,  of  the 
state  and  district  wherein  the  crime  shall  have  been  committed ; 
which  district  shall  have  been  previously  ascertained  by  law ;  and 
to  be  informed  of  the  nature  and  cause  of  the  accusation ;  to 
be  confronted  with  the  witnesses  agamst  him ;  to  have  compul- 
sory process  for  obtaining  witnesses  in  his  favor  ;  and  to  have  the 
assistance  of  counsel  for  his  defence." 

The  mode  of  trial  it  is  seen,  in  all  criminal  actions,  is  a  trial  by 
a  juiy,  and  is  surrounded  by  certam  safeguards,  which  are  made 
as  well  by  the  constitution  as  by  statutes,  a  part  of  the  system ; 
and  wliicli  government  cannot  dispense  with.  Among  these,  is, 
that  the  accused  shall  have  a  speed//  trial.  Though  this  is  a  posi- 
tive injunction  of  the  constitution,  it  is  to  have  a  reasonable  con- 
struction in  favor  of  the  accused.  If  when  charged  with  crime 
he  is  willing  to  proceed  at  once  to  trial,  no  delay  on  the  part  of  the 
prosecution  should  be  hekVreasonable,  except  that  which  is  neces- 
sary to  secure  the  attendance  of  witnesses ;  and  this  reasonable- 
ness, is  a  matter  which  it  is  the  province  of  the  court  to  control. 
If  the  government  officer,  acting  under  the  responsibility  of  his 
official  oath,  represents  the  excuse  of  absent,  or  foreign  witnesses, 
or  witnesses  who  by  reason  of  sickness,  or  other  temporary  infir- 


IIIGIIT  OF  TltlAL  LY  JURY.  4.30 

inity,  cannot  be  obtained  at  earliest  possible  da}'  in  court,  it  is 
with  reason  supposed  to  be  the  duty  of  the  court,  to  grant  some 
delay.  So  on  the  other  hand,  a  judicious  court,  in  vi(;w  oi  the 
constitutional  security  in  this  respect  intended  for  the  accused  ; 
and  in  view  of  the  innnense  power  of  oppression  that  may  bo 
brought  by  prosecuting  officers.  The  courts  will  ever  appreciate 
actual  difficulties,  and  duly  regard  the  rights  of  the  accused,  and 
especially,  in  cases  where  delay  will  result  in  keeping  him  in 
confinement. 

In  cases  not  capital,  it  seldom  fails,  that  the  accused  can  avoid 
confinement,  by  recognizance  of  bail ;  and  here  again,  the  consti- 
tution throws  its  protection  around  the  accused,  and  commands 
that  unreasonable  bail  slmll  not  be  requhed.  Tliis  command, 
which  the  court  is  under  the  solemn  obligation  to  obey,  appeals 
to  the  sense  of  justice  of  the  court  or  judge  to  regard,  in  fixing  the 
amount  of  bail.  No  conscientious  magistrate  can,  capriciously, 
allow  this  constitutional  privilege  of  the  accused  to  be  set  at  naught. 

So  too,  there  is  the  further  security  to  the  accused,  that  the 
trial  shall  be  public.  By  this  it  is  not  meant  that  every  person 
who  sees  fit,  shall  m  all  cases  be  permitted  to  attend  criminal  trials, 
because  there  are  many  cases  where,  from  the  character  of  the 
charge,  and  the  nature  of  the  evidence  by  which  it  is  to  be  sup- 
ported, the  motives  to  attend  the  trial  on  the  part  of  portions  of 
the  community  would  be  of  the  worst  character,  and  where  a 
regard  to  public  morals  and  public  decency,  would  demand  the 
exclusion  at  least  of  the  young  from  the  hearing,  and  of  witnessing 
the  evidence  of  human  depravity,  wliich  the  trial  must  necessarily 
bring  to  light.  The  requirement  of  a  public  trial,  is  for  the  bene- 
fit of  the  accused,  that  the  pubhc  may  see  that  he  is  fairly  dealt 
by  and  not  unjustly  condemned,  and  the  presence  of  inter- 
ested spectators  may  keep  his  triers  keenly  alive  to  a  sense  of 
their  responsibility,  and  to  the  importance  of  their  functions. 
This  requirement  is  fairly  met,  if,  without  partiality  or  favoritism, 
a  reasonable  proportion  of  the  public  is  suftered  to  be  present, 
notwithstanding  those  persons  whose  presence  could  be  of  no  ser- 
vice to  the  accused,  and  who  would  only  be  drawn  thither  by  a 
prm-ient  curiosity,  are  excluded  altogether,  a 

a  Cooley  on  Const.  Lim.  312. 


440        „  RIGHT   OF  TRIAL   BY  JURY. 

But  a  far  more  important  requii-cment  is,  that  the  proceeding 
to  estabhsh  guilt,  shall  not  be  inquisitorial,  and  the  criminal  shall 
not,  in  a  criminal  case,  "  be  compelled  to  be  a  witness  agamst 
himself,"  and  in  this  state,  as  a  still  further  protection  to  the 
accused,  the  legislature  have  provided  by  a  statute,  a  "  that  in  the 
trial  of  all  indictments,  complaints,  and  other  proceedings  against 
persons  charged  with  the  commission  of  crimes  or  offences ;  and 
hi  all  proceedings  in  any  and  all  courts,  and  before  any  and  all 
officers  and  persons  acting  judicially;  the  person  so  charged,  shall, 
at  his  own  request,  but  not  otherwise,  be  deemed  a  competent 
witness  ;  but  the  neglect  or  refusal  of  any  such  person  to  testify, 
shall  not  create  any  presumption  against  him."  There  is  a  still 
further  security  and  protection  to  the  accused  upon  his  preliminary 
examination,  wliich  the  statute  directs  shall  not  be  on  oath  ;  and 
before  it  is  commenced,  the  accused  shall  be  informed  of  the  charge 
made  against  him  ;  and  he  shall  be  allowed  a  reasonable  time  to 
send  for  and  advise  with  counsel;  and  if  he  desires  it,  he  may  have 
his  counsel  present  during  his  examination,  and  during  the  exami- 
nation of  the  complainant  and  the  witnesses  on  the  part  of  the 
prosecution,  h  Aaid  it  is  made  the  duty  of  the  examining  magis- 
trate to  inform  the  accused  of  his  privilege  to  refuse  to  answer 
any  question  that  may  be  put  to  him,  c  and  in  case  he  answers, 
the  interrogatories  put  to  him  shall  be  reduced  to  writing  by  the 
magistrate,  or  under  his  direction,  and  they  shall  be  read  to  the 
accused,  who  is  entitled  to  correct  and  add  to  them  until  they  are 
made  conformable  to  what  he  declares  is  the  truth  before  they  are 
certified  and  signed  by  the  magistrate.  All  these  prehmmary  pro- 
ceedmgs  are  connected  with,  and  incident  to  the  system  of  trial 
by  jury. 

But  as  we  have  seen,  except  in  criminal  cases,  this  constitutional 
guarantee  is  to  be  reasonably  interpreted.  It  was  not  intended  by 
this  provision,  as  may  be  learned  from  its  language,  to  tie  up  the 
hands  of  the  legislature  in  every  conceivable  case,  so  that  no  mat- 
ter can  be  judicially  settled  except  by  a  jury  trial,  and,  as  will  ap- 
pear, it  has  been  frequently  decided,  there  are  matters  that  come 
before  courts,  referees,  and  commissioners  for  adjudication,  where 

a  Laws  of  N.  Y.  18C9,  Chap.  G78.  h  Ecv.  Stat.  708,  §  1-1. 

cid.,  §15. 


rJGHT  OF  TRIAL  BY   JURY.  441 

this  pro\ision  of  tlie  eonstitutiou  is  not  impaired,  even  though  a 
jury  trial,  in  the  technical  sense  of  the  term,  Is  not  given. 

"  Due  process  of  law,"  therefore,  includes  every  process  and 
proceeding  Avhich  any  of  the  guarantees  of  the  national  or  state 
constitutions  confer.  The  first  article  of  the  constitution  of  this 
state  declares,  that  "  no  member  of  tliis  state  shall  be  disfran- 
chised, or  deprived  of  any  of  the  rights  or  privileges  secured  to 
any  citizen,  unlesfi  hy  the  law  of  the  land,  or,  the  jiuhjment  of  his 
2Jeers."  And  also  by  section  two,  that  "  the  trial  by  jury  in  all 
cases  in  which  it  has  heretofore  been  used,  shall  remain  inviolate 
forever."  Due  process  of  law,  not  only  includes  these  guarantees, 
but  also  as  we  have  shown,  includes  the  right  to  have  the  prosecu- 
tion conducted  accordmg  to  the  prescribed  forms,  as  used  in  judi- 
cial proceedings. 

Questions  have  arisen,  both  in  criminal  and  civil  proceedings  in 
the  courts  of  this  state,  as  to  what  constituted  a  jury  within  the 
meaning  of  the  constitution  of  this  state,  for  the  trial  of  criminal 
offences,  below  the  grade  of  capital  and  infamous  oilences  ;  and 
also,  for  obtaining  compensation  in  civil  cases,  for  private  property 
taken  for  public  use. 

It  is  conceded,  that  the  jury  referred  to  in  the  above  constitu- 
tional pro^-ision,  is  a  common  law  jury  of  twelve  men,  a  but  the 
explanatory  w^ords,  "  as  heretofore  used," — means,  as  used  prior  to 
the  adoption  of  that  constitution.  By  article  7,  §  2,  of  the  consti- 
tution of  1821,  the  provision  as  to  trial  by  jury  was  in  substance 
the  same,  as  in  that  of  184G  above  cited.  The  statutes  of  the  state 
previous  to  the  adoption  of  the  constitution  of  1821,  as  well  as 
subsequent,  expressly  authorized  the  trial  of  petit  larceny,  and 
offences  not  infamous  in  their  character,  under  the  degi'ee  of  grand 
larceny  without  indictment,  without  a  jmy,  where  the  accused 
neglected  to  give  security  to  appear  at  the  next  com-t  of  general 
sessions,  h  And  the  first  law  authorizing  a  trial  by  jury  in  any 
case,  in  a  court  of  special  sessions,  for  such  offences,  was  passed 
subsequent  to  the  ado^Dtion  of  the  constitution  of  1846.  c 

The  conflict  that  arose  under  these  provisions,  was,  from  the 

a  Wyudhara  v.  The  People,  13  N.  Y.  48i. 

b  1  Greenleaf  Laws,  K  Y.  422,  K.  L.  1813,  501,  7. 

c  Duffy  V.  The  Teople,  6  Hill,  78. 

56 


442  EIGHT  OF  TRLSX  BY  JURY. 

claim  made,  that  in  wliatever  court  the  joerson  charged  might  be 
tried,  he  was  entitled  to  have  his  giiilt  or  innocence  determined  by 
a  jury  of  twelve  men.  This  was  opposed,  and  finally  held  by  the 
coui'ts  of  this  state,  that  under  the  constitution  and  statutes,  per- 
sons charged  with  crimes  not  capital,  or  othermse  infamous,  may 
be  held  to  answer  without  being  first  indicted  or  presented  by  a 
gi'and  jiuT,  as  the  legislature  should  provide,  a  By  an  act  of  the 
legislature  of  loth  April,  1813,  under  the  constitution  of  1777, 
certain  ofiences,  viz.,  petit  larcency,  misdemeanor,  breach  of  the 
peace  or  other  ninior  ofiences,  under  the  degree  of  grand  larceny, 
were  made  triable  l)y  a  court  of  special  sessions,  without  any  juiy 
whatever.  This  act  was  modified  by  the  legislature  in  1824,  so  as 
to  give  the  party  accused  the  right  to  be  tried  by  a  jury  of  six  men,  h 
and  these  statutes  were  regarded  as  in  force  when  the  present 
constitution  was  adopted. 

Trials  for  offences  of  this  minor  grade,  had  rmiformly  been 
authorized  under  these  statutes,  without  a  jury,  and  "s\ith  a  jury  of 
six  men  ;  and  the  highest  courts  had  ratified  the  practice,  and  they 
also  held,  that  it  was  m  the  power  of  the  legislature  to  confer  upon 
courts  of  special  sessions,  the  right  to  try  offences  below  the  grade 
of  felony  without  indictment  and  without  a  jury,  c  And  though 
the  Revised  Statutes  have  modified  still  more  these  rights  of  trial 
before  courts  of  special  sessions,  and  made  the  right  of  trial  to 
depend  upon  the  condition,  that  the  accused  is  unable  to  furnish 
bail  to  appear  at  a  higher  court,  it  is  still  in  the  power  of  the  spe- 
cial sessions,  in  such  case  of  failure  of  bail,  to  try  him,  whatever  may 
be  the  deshe  or  demand  of  the  accused  to  l>e  tried  elsewhere.  It 
is  an  entire  question  of  power  of  the  legislature,  to  confer  this 
jurisdiction  upon  the  courts  to  try  such  cases,  with  or  without 
consent  of  the  accused.  They  can  grant  or  withold  their  consent 
to  allow  a  jmy ;  the  granting  it  is  a  privilege. 

But  if  a  party  be  arrested  for  a  statute  misdemeanor,  as  for  in- 
stance for  a  violation  of  the  "  act  to  suppress  intemperance,"  and 
Ls  brought  before  a  justice  of  the  j)eace  and  desires  to  have  his 
case  parsed  upon  by  a  grand  jury,  and  if  indicted,  to  be  tried  by 
a  jury  of  twelve  men,  and  is  able  and  willing  to  give  bail  for  his 

a  The  People  v.  Fisher,  20  Barb.  652.  h  Sess.  Laws,  1824,  Ch.  238 

c  Dufify  V.  The  People,  6  Hill.  78;  WjTidham  v.  The  People,  13  N.  Y.  484 


RIGHT   OF  TRIAL  BY  JURY.  443 

appeal  ance  before  tlie  next  court  of  oyer  and  terminer  or  general 
sessions,  he  cannot  be  sunimarilj  tried  by  tlio  justice,  against  the 
consent  of  the  paiiy  so  charged,  n  The  state  constitution  pro- 
vides, "that  the  trial  by  jury,  in  all  cases  in  which  it  has  been 
heretofore  used,  shall  remam  inviolate  forever."/^  Under  our 
statute  laws  existing  at  the  time  of  the  adoption  of  tlie  constitution, 
a  justice  could  hold  a  court  of  special  sessions,  and  could  try 
without  a  jury,  if  one  should  not  be  demanded  ;  or  with  a  jury  of 
six  men,  if  one  should  be  requested — persons  charged  with  certain 
misdemeanors,  Avho  should  elect  to  be  thus  tried,  or  persons  who 
should  fail  to  give  the  requisite  security  to  appear  at  a  court  of  oyer 
and  terminer  or  general  sessions,  Avhere  they  could  not  be  tried  with- 
out indictment,  nor  by  any  but  a  common  law  jury  of  twelve  men. 
This  privilege  existed  when  the  constitution  was  adopted,  and  was 
reserved  in  it  to  tlie  citizen ;  when  therefore  the  party  charged, 
demanded  tiiis  privilege,  and  offered  to  comply  with  the  condition, 
it  left  tlie  justice  without  jurisdiction  to  proceed. 

So  too,  as  to  this  constitutional  right  of  trial  by  jury,  it  can  only 
be  claimed  where  the  subject  is  judicial  in  its  character.  The 
taking  of  private  property^for  public  purposes  under  the  right  of 
eminent  domaui,  or  under  the  taxing  power,  do  not  partake  of  this 
judicial  character.  They  are  both  emanations  of  the  law-making 
power.  They  are  attributes  of  political  sovereignty,  for  the  exer- 
cise of  which,  the  legislature  is  under  no  necessity  to  address  itself 
to  the  courts.  In  appropriating  the  propeiiy  of  the  citizen  under 
these  powers,  for  a  public  purpose,  under  legislative  and  constitu- 
tional authority,  with  a  proper  provision  for  compensation,  the  act 
of  the  legislatiu-e  itself,  is  held  to  be  "  due  process  of  law."  c  The 
constitution  itself  excepts  these  cases  from  the  absolute  right  of  a 
trial  by  jmy,  or  being  made  subject  to  judicial  contests,  and  pre- 
scribes the  manner  in  which  the  compensation  shall  be  ascer- 
tained. The  constitution  nowhere  inhibits  the  exercise  of  this 
power  by  the  legislature,  or  of  their  delegating  the  power  to  public 
officers,  or  to  coi^porations  established  under  legislative  authority, 
to  secure  a  judicious  appraisal  of  property  in  order  to  cany  on 
enterprises  in  which  the  pubhc  are  interested. 

o  Hill  V.  The  People,  20  N.  Y.  3G9.  I  Art.  1^2. 

c  People  V.  Smith,  21  N.  Y.  598. 


4A4:  THE  POLICE  POWEE. 


CHAPTER  XIV. 

OF  THE  POLICE  POAVEE  OF  THE  GOVEPtNilENT,  UNDER  STATE  CON- 
STITUTIONS, BY  WHICH  PRIVATE  PROPERTY  MAY  BE  TAKEN  FOR 
THE  BENEFIT  OF  OTHERS. 

Besides  tlie  methods  of  taking  private  property  of  tlie  citizen 
by  right  of  eminent  domaiu,  and  by  the  taxing  power,  there 
exists  another  power  by  which  private  property  may  be  taken,  used 
or  destroyed  for  the  benefit  of  others,  and  this  is  called  the  j^olice 
l^oicer;  sometimes  called  the  law  of  oven'uling  necessity. 

It  is  clear,  that  before  the  adoption  of  either  our  state  or 
national  constitutions,  it  was  well  settled  common  law,  as  we  find 
both  by  the  best  elementary  lavf  writers,  and  by  uniform  adjudi- 
cations in  the  courts,  that  in  cases  of  actual  necessity, — as  that  of 
preventing  the  spread  of  fire, — the  ravages  of  a  pestilence,  or  any 
other  great  calamity,  the  private  property  of  any  individual  maybe 
lawfully  taken,  used  or  destroyed  for  the  relief,  protection,  or  safety 
of  the  many,  without  subjecting  the  actors  to  personal  responsi- 
bihty.  In  these  cases,  the  rights  of  private  property  must  be  made 
subservient  to  the  public  Avelfare.  The  maxim  of  law  is,  that  a 
private  mischief  is  to  be  endured,  rather  than  a  public  inconveni- 
ence. "  On  this  ground,"  says  Chancellor  Kent,  a  "  rest  the  rights  of 
pubHc  necessity.  If  a  common  highway  be  out  of  repair,  a  pas- 
senger may  lawfully  go  through  an  adjoinmg  enclosure.  So  it  is 
lawful  to  raze  houses  to  the  ground  to  prevent  the  spreading  of  a 
conflagi'ation.  These  are  cases  of  ui'gent  necessity,  in  which  no 
action  lay  at  common  law  by  the  individual  who  sustained  the  in- 
jury ;  but  private  property  must  in  many  other  instances,  yield  to 
the  general  interest."  h  ^ 

a  2  Kent  Com.  338.  h  1  Dall.  U.  S.  3G3. 

Note  1. — Of  this  principle  there  are  many  striking  illustrations  besides  those 
stated.  If  a  man  be  assaulted,  he  may  fly  through  another's  close.  5  Bac.  Abr. 
173.  In  time  of  war,  bulwarks  may  be  built  on  private  ground.  Dyer  8,  Brook 
Trespass.  And  as  the  safety  of  the  people  is  a  law  above  all  others,  it  is  lawful  to 
part  affrayers  in  the  house  of  another  man.  Keyl.  46,  20Vin.  Abr.  f.  407,  §14; 
Pnffendorflib.  2,  Ch.  6,  §  8. 


THE  rOLICE  rOWER.  445 

This  po-vver  to  take  private  property  by  ^vLicll  the  bm-thcn  falls 
upon  the  citizen,  seems  at  first  liush,  to  be  so  contrary  to  a  sense 
of  common  justice,  and  falls  so  unequally  and  oppressively  upon 
the  individual,  that  it  is  most  natural  tliat  we  should  search  for  a 
proper  basis  for  its  support.  It  is  claimed  that  the  protection  of 
the  citizen  is  found  in  the  constitutions  of  both  the  state  and  na- 
tion which  declare  "  that  private  property  shall  not  be  taken  for 
public  use  without  just  compensation."  But  our  highest  courts 
have  held,  that  this  police  power,  or  the  law  of  oven-uling  neces- 
sity, is  not  controlled  by  this  constitutional  hmitation ;  a  that  such 
restriction  in  the  constitution  was  not  designed  for,  and  should 
not  be  extended  to  such  a  case  ;  that  this  clause  in  the  constitu- 
tion has  reference  only  to  cases  where  the  property  of  an  indi- 
vidual is  taken  for  some  public  benefit  or  advantage.  ■ 

a  llussel  V.  The  Jlaj'or  of  New  York,  2  Deuio,  4G1,  483;  Mayor  of  New  York  v. 
Lord,  17  Wentl.  285;  Stone  v.  Mayor  of  New  York,  25  Wend.  107. 

Note  2.— In  an  old  case  reported  in  12  Co.  1.3,  it  was  held,  that  even  the  king 
could  not  take  the  private  property  of  the  subject  for  making  a  wall  about  his 
own  house,  or  a  bridge  to  come  to  his  house,  for  that,  wouhl  not  be  for  the  public 
benefit.  "  But  when  the  enemies  come  against  the  realm  to  the  sea  coast,  it  is 
lawful  to  come  upon  any  land  adjoining  to  the  same  coast,  to  make  trenches  or 
bulwarks  for  the  defence  of  the  realm,  for  every  subject  hath  a  benefit  by  it.  And 
therefore  by  the  common  law  every  man  may  come  upon  any  land  for  the  defence 
of  the  realm,  and  in  such  case,  and  on  such  extremity,  they  may  dig  for  gravel  for 
the  making  of  bulwarks,  for  this  is  for  the  public,  and  every  one  hath  a  benefit 
by  it.  And  for  the  commonwealth,  a  man  shall  suffer  damage;  as  for  saving  of  a 
city,  or  town,  a  house  shall  be  plucked  down  if  the  next  be  on  fire; — and  the 
suburbs  of  a  city  in  time  of  war,  for  the  common  safety  shall  be  plucked  down; 
and  a  thing  for  the  commonwealth,  a  man  may  do,  without  being  liable  to  an 
action."  In  the  case  of  Governor,  &c.,  v.  Meredith,  4  Tenn.  797,  Buller,  J.,  said, 
''  There  are  many  cases  in  which  individuals  sustain  an  injury  for  which  the  law 
gives  no  action;  for  instance,  pulling  down  houses,  or  raising  bulwarks  for  the 
preservation  and  defence  of  the  king,  done  against  the  king's  enemies."  This  is 
one  of  the  cases  to  which  the  maxim  applies  "  Sahis  popuU  suprema  est  lex.'" 

In  Mouse's  case,  12  Co.  G3,  Mouse  brought  an  action  in  trespass,  for  the  value 
of  a  hogshead  of  wine  cast  overboard  of  a  barge.  A  ferryman  from  Gravesend  to 
fjondon  with  passengers,  including  the  plaintiff  and  freight,  a  part  of  which  was 
this  cask  of  wine  belonging  to  the  plaintiff.  While  on  the  water,  a  great  tempest 
happened,  and  a  strong  wind,  so  that  the  barge  and  all  the  passengers  were  in 
danger  to  be  drowned,  if  this  hogshead  of  wine  and  other  ponderous  things  were 
not  cast  overboard  for  the  safety  of  the  lives  of  the  passengers.  It  was  resolved, 
per  totam  curiam,  that  in  case  of  necessity  for  the  saving  of  the  lives  of  the  pas- 
sengers, it  was  lawful  for  the  defendant,  being  a  passenger,  to  cast  the  cask  of  the 
plaintiff  out  of  the  barge,  with  other  things  in  it.     "Quod  necessiias  cogit,  defendit." 


446  THE  roLicE  ro"s\*EH. 

The  seventeenth  section  of  the  fii'st  article  of  the  constitution  of 
this  state  provides  and  declares,  that  such  parts  of  the  common 
law,  etc.,  as  did  form  the  law  of  the  colony  of  New  York  on  the 
19tli  day  of  April,  1775,  &c.,  shall  be  and  continue  the  law  of  this 
state,  subject  to  such  alterations  as  the  legislature  shall  make  con- 
cerning the  same.  But  all  such  parts  of  the  common  law,  <tc.» 
as  are  repugnant  to  this  constitution  were  abrogated.  This  doc- 
trine of  ovennhng  necessity,  or  }iolice  power,  w'as  the  common 
law  of  this  state  at  the  time  of  the  adoption  of  this  state  constitu- 
tion of  1846.  It  was  brought  fi'om  England  by  our  ancestors  as 
a  part  of  their  system  of  common  law ;  was  adopted  by  the  colon- 
ists as  the  law  of  the  land ;  it  is  not  clearly  repugnant  to  the  con- 
stitution ;  but  being  adopted  by  it,  is  in  effect  a  part  of  it. 

The  common  law,  existing  at  the  time  of  the  adoption  of  our 
state  constitution,  was  adopted  by  the  constitution  as  a  part  of  it- 
self. At  common  law,  public  nuisances  could  be  abated  luider  the 
police  power,  or  even  by  an  individual  who  for  such  purpose  be- 
came a  part  of  the  police  power,  even  to  the  injury  or  destruction 
of  private  property  invested  in  such  subject  of  nuisance  ;  and  an 
act  of  the  legislature  conferring  authority  upon  a  municipal  body, 
to  remove,  abate,  suspend,  alter,  improve  and  purify,  anything 
dangerous  to  life,  or  health,  as  a  public  nuisance,  even  to  the  de- 
struction of  such  private  property,  is  not  within  the  prohibition  of 
the  constitution  against  taking  private  property  without  just  com- 
pensation, nor  in  violation  of  that  other  provision,  that  the  indi- 
vidual shall  not  be  deprived  of  his  property  "  without  due  process 
of  law."  Nor  is  the  creating  such  municipal  board  with  power  to 
make  by-laws  concerning  such  police  matters,  a  delegation  of  the 
legislative  power,  or  trust,  nor  is  it  inhibited  by  the  sixth  article  of 
the  constitution,  as  the  creation  of  a  local  court  with  judicial 
powers  ;  for  the  reason,  that  the  legislature,  having  power  to  create 
a  sanitary  board,  within  a  specified  district,  possessing  sanitary 
powers, — as  a  necessary  result,  they  can  confer  upon  such  board 
the  power  to  pass  all  needful  rules  and  ordinances  to  carry  out  the 
purposes  of  such  creation,  a 

And  the  same  rule  has  become  the  settled  policy  of  this  state 
by  its  repeated  statutes,  and  the  adjudications  thereon.     "  It  is 

a  Coe  T.  Shultz,  47  P.arb.  6i;  Cooper  v.  Shultz,  32  How.  Pr.  107. 


THE  rOLICE  rOWEK.  447 

right  that  this  pohce  sanitary  power  should  exist  somewhere, 
though  hirgo  aud  discretionary  powers  are  conferred  by  the  legis- 
kitiire.  If  the  civil  authorities  were  obliged  to  wait  the  slow  pro- 
gress of  the  prosecution,  tlie  evil  arishig  from  nuisances,  and  from 
pestilential  diseases,  would  present  an  alarnmig  condition  of 
things,  a  Our  statutes  abound  Avith  laws  of  this  character.  The 
constitution  of  the  state,  is  to  be  resorted  to,  not  to  see  wliat 
poAvers  are  conferred  upon  the  legislature,  but  what  have  been 
withheld  by  the  people.  The  legislature  can  pro\-ide  such  agen- 
cies for  the  administration  of  the  law,  and  the  maintenance  of 
public  order,  and  especially  in  regard  to  the  police,  and  of  security 
to  the  life  and  the  health  of  its  citizens,  as  it  shall  judge  suitable, 
where  no  prohibition,  expressly  made,  or  necessarily  implied,  is 
foimd  in  the  constitution.  J>  As  the  police  and  sanitary  powers 
were  possessed  by  municipal  corporations  at  common  law,  it  is 
believed,  that  without  any  legislation  conferring  the  authority, 
they  could  regulate  by  proper  ordinances  and  by-laws,  the 
manner  of  carrying  on  any  trade  or  business  within  the  muni- 
cipality so  far  as  to  prevent  monopolies ;  the  sale  of  unfit  commo- 
dities ;  and  insure  proper  conduct  of  those  who  practice  it ;  pre- 
vent slaughter  houses  and  the  slaughtering  of  animals,  tallow 
chandlers,  and  the  hke,  within  the  walls,  or  certain  limits  of  a  city,  c 
Pnffendoi-f  informs  us  that  this  law  of  necessity  is  an  exception 
to  all  human  ordinances  and  constitutions,  and  that  therefore  it 
gives  a  right  of  doing  many  things  otherAvise  forbidden,  d  Per- 
haps from  this  idea,  originated  the  common  expression,  "  that  neces- 
sity knows  no  law."  Be  this  as  it  may,  it  is  certain,  that  even  this 
hiAv  of  necessity,  is  still  subject  to  the  law  of  reason,  and  subject 
to  control.  If  in  the  exercise  of  this  poAver,  it  should  be  so  care- 
lessly and  negligently  exercised,  as  to  produce  an  injuiy,  there  can 
be  no  doubt,  the  persons  exercising  it  Avould  be  held  responsible, 
by  that  old  and  well  established  maxim  of  the  common  laAV,  that 
a  person  using  his  oAvn  natural  rights,  is  subjected  to  such  a 
restricted  exercise  of  them  as  not  thereby  to  occasion  injuiy  to 
another.     The  exercise   of  this  right  of  overnilling  necessity  is 

a  Van  Woriner  v.  The  Mayor  of  Albany,  15  "Weud.  '2G4. 

h  People  V.  Draper,  15  N.  Y.  533. 

c  Willcock  on  Municipal  Corporations,  111.  d  B.  2,  ch.  6. 


448  THE  rOLICE  POWER. 

also  called  the  exercise  of  a  natural  liglit  Avliicli  belongs  to  every 
indi%'idual,  not  confen-ed  by  law,  but  tacitly  excepted  from  human 
codes,a  and  is  governed  by  the  same  rules  and  maxims  of  common 
law,  but  when  duly  and  discreetly  exercised  for  the  relief,  protec- 
tion or  safety  of  the  many,  no  liabihty  attaches  to  those  who 
exercise  it. 

It  may  therefore  be  regarded  as  a  settled  principle,  growing  out 
of  the  natm-e  of  an  organized  society  that  every  holder  of  pro- 
perty, however  absolute  and  unqualified  may  be  his  title,  holds  it 
under  the  implied  liability  that  his  use  of  it  shall  not  be  injurious 
to  the  equal  enjoyment  of  others  havhig  an  equal  right  to  the  en- 
joyment of  their  property  ;  nor  injurious  to  the  rights  of  the  com- 
munity. And  as  has  been  said,  when  treating  of  the  right  of 
eminent  domain,  all  property  of  the  state  is  derived,  directly  or 
indirectly,  from  the  government,  and  held  subject  to  those  general 
regulations  which  are  necessary  to  the  common  good  and  general 
weKare.  Eights  of  property,  lilvc  all  other  social  and  conventional 
rights,  are  subject  to  such  reasonable  limitations  in  their  enjoy- 
ment, as  shah  prevent  them  from  being  injurious,  and  to  such 
reasonable  restraints  and  regulations  estabhshed  by  law,  as  the 
legislature,  under  the  governing  and  controlling  power  vested  in 
them  by  the  constitution,  may  think  necessary  and  expedient. 

All  legislative  power  being  vested  in  the  legislature,  except  such 
as  is  therein  prohibited,  they  possess,  under  that  authority,  all 
power  to  make,  ordain  and  estabhsh  all  manner  of  wholesome  and 
reasonable  laws,  statutes  and  ordinances,  either  with  penalties  or 
without,  not  repugnant  to  the  constitution  as  they  shall  judge  to 
])e  for  the  good  and  welfare  of  the  state,  and  of  the  citizens 
thereof.  6 

It  may  now  be  regarded  as  the  law  of  this  state,  settled  by  its 
highest  court,  that  there  are  cases,  notwithstanding  this  constitu- 
tional protection,  in  which  the  property  or  rights  of  individuals 
may  be  justly  sacrificed  to  the  necessities  of  others,  where  neither 
the  state,  as  a  whole,  nor  the  pubhc,  in  a  general  sense  of  that 
term,  may  have  any  interest  in  such  a  sacrifice.  This  may  be 
seen  in  the  cases  of  imminent  peril  referred  to,  when  the  right  of 

a  Kussel  v.  Mayor,  of  N.  Y.,  2  Denio  47-i  ;  Mayor  of  N.  Y.  v.  Lord,  17  Wend.  297. 
h  Commonwealth  v.  Alger,  7  Cush.  53. 


THE   rOLICE   I'OWER,  4^19 

self  tlefencc,  or  the  protection  of  life  or  property,  authorizes  tlic 
sacrifice  of  other  and  less  valuable  property.  Among  the  in- 
stances, given  by  the  court,  by  ^vay  of  illustration,  are  the  throw- 
ing overboard  goods  in  a  storm,  and  the  pulling  down  of  houses 
to  prevent  the  spreading  of  a  conflagration,  a 

This,  says  the  court,  is  a  natural  right,  arismg  from  inevitable, 
and  pressing  necessity;  when  of  two  immediate  evils,  one  must  be 
chosen, — the  less,  is  voluntarily  inflicted,  in  order  to  avoid  the 
greater.  Under  such  circumstances,  the  general  and  natural  law  of 
all  civilized  nations,  recognized  and  ratified  by  the  express  deci- 
sions of  our  common  law,  authorizes  the  destruction  of  property 
by  any  citizen,  without  his  being  subject  to  any  right  of  recoveiy 
against  him  by  the  owner.  The  agent  in  such  destruction,  whether 
in  protection  of  his  OAvn  rights,  or  those  of  others  which  may  be 
accidentally  under  his  safeguard,  acts  from  good  motives  and  for 
a  justifiable  end ;  so  that  against  him,  the  sufferer  has  no  rightful 
claim.  But  the  loser  may  have  an  equitable  right  of  compensa- 
tion against  those  who  have  benefited  by  his  loss  in  the  preseiTa- 
tion  of  their  property.  In  Marine  losses  of  this  nature  the  com- 
mon law  has  been  able  to  establish  a  just  rule  of  compensation 
and  assessment ;  and  the  same  principle,  so  far  as  it  is  possible  to 
apply  it,  -would  be  equally  equitable  in  similar  losses  by  land. 

But  as  to  most  of  these  cases,  from  the  impossibility  or  extreme 
difficulty  of  ascertaining  the  parties  benefited,  or  protected  from 
loss,  and  of  settling  the  avcrtige  proportions  of  the  loss  between 
them,  by  any  general  rule,  the  sufferer  is  commonly  left  without 
legal  remedy.  Thus,  those  who,  whether  magistrates  or  private 
citizens,  under  the  pressure  of  inevitable  danger,  and  to  prevent 
a  greater  calamity,  find  themselves  compelled  to  destroy  the 
effects  of  others,  arc  not,  and  ought  not  to  be  adjudged  trespassers, 
although  they  do  not  act  for  the  state  or  for  the  pubhc,but  merely 
for  the  serncc  of  some  few  of  their  neighbors,  or  fellow  citizens, 
and  have  thus  inflicted  involuntary  injury  upon  some,  to  prevent 
a  much  greater  calamity  falling  upon  others,  h  This  injustice  how- 
ever to  indi^-iduals  whose  property  is  so  destroyed,  can  be  cor- 
rected, as  it  should  be,  by  proper  legislation. 

a  Stone  v.  Mayor,  of  N.  Y.  23  Wcud.,  171. 
h  Id.  175  ;  The  Saltpetre  case,  12  Colce  1:3. 
57 


450  THE  rOLICE  rOWER. 

AVe  Lave  no  general  statute  in  this  state,  regulating  the  exercise 
of  this  power,  and  but  a  local  law  for  the  city  of  New  York,  a 
This  statute  it  was  held,  Avas  a  mere  regulation  of  the  common  law 
right  of  any  person  to  destroy  property  in  the  case  of  immediate 
and  overwhelmmg  necessity  to  prevent  the  ravages  of  fire  or  pesti- 
lence. "Statutes  of  this. description  merely  appoint  a  municipal 
agent,  to  judge  of  the  emergency,  and  direct  the  performance  of 
acts  which  any  individual  miglit  do  at  his  peril,  without  any  stat- 
ute at  all."  6  It  will  be  more  convenient  in  this  chapter  to  call 
this  power,  ike  police  jjoicer. 

It  was  AveU  said,  in  our  highest  court,  c  that  "  the  poHce  power^ 
is  of  necessity,  despotic  in  its  character,  commensurate  with  the 
sovereignty  of  the  state;  and  individual  rights  of  property  beyond 
the  express  constitutional  limits,  must  yield  to  its  exercise.  And 
in  emergencies,  it  may  be  exercised  to  the  destruction  of  property, 
without  compensation  to  the  owner,  and  even  without  the  formality 
of  an  investigation.  It  is  upon  this  principle  that  health  and 
c[uarantine  laws  are  established ;  that  a  building  is  blown  up  to 
arrest  a  conflagTation  in  a  populous  town ;  that  a  pubhc  market  is 
purged  of  infectious  articles ;  that  merchandize  on  ship  board  in- 
fested "^^dth  pestilence,  is  cast  into  the  deep,  and  public  nuisances 
are  abated.  It  is  the  pubhc  exigency,  which  demands  the  sum- 
mary destruction,  upon  the  maxim,  that  the  safety  of  society  is 
the  paramount  law.  It  is  the  apphcatiou  of  the  personal  right  or 
principle  of  self  preservation  to  the  body  poHtic." 

It  was  held  in  our  Court  of  Chancery,  d  in  1835,  and  has  never 
smce  been  questioned,  that  the  legislature  are  the  sole  judges  as 
to  the  expediency  of  making  police  regulations  interfering  with  the 
natural  rights  of  our  citizens,  which  regulations  are  not  prohibited 
by  the  constitution. 

We  have  been  examining  this  question  simply  as  a  question  of 
power.  It  is  no  purpose  of  this  work  to  discuss  the  justice  or 
equity  of  a  constitutional  or  a  statute  provision.  It  might  even  be 
defended  in  most  instances,  upon  the  ground  that  it  was  not  even 

a2E.  L.  of  1813,  p.3G8. 

h  Per.  Comstock  J.  iu  Wymhamer  v.  the  People,  13  N.  Y.  4.02. 

cld.  451. 

d  Varick  v.  Smith,  5  Paige,  160. 


THE   POLICE   POWER.  451 

unjust  to  tlie  individual.  Take  the  case  of  a  spreading  conflagra- 
tion. If  the  necessity  is  shown  to  be  such,  that  the  property  itself 
would  otherwise  have  been  destroyed,  the  proprietor  suffers  no 
injustice  by  its  police  destruction,  and  the  security  of  the  many  is 
promoted.  As  a  question  of  power,  it  must  be  regarded  in  this 
sbate,  to  be  settled,  and  founded  upon  principles  wliicli  are  above 
and  be3'ond  the  reach  of  constitutional  restriction.  It  is  the  plain 
and  simple  principle  of  preservation  of  life  and  property  in  cases 
of  iminent  hazard,  by  the  sacrifice  of  that  which  is  less  valuable, 
and  which,  from  the  very  exigency  of  the  case,  must  be  left  to  the 
decision  and  determination  of  the  moment. 

Blackstoue  defines  this  power  of  pubhc  ixjUce  or  economy,  "  as  the 
due  regulation  and  domestic  order  of  the  kingdom,  whereby  indi- 
viduals of  the  state,  like  members  of  a  well  regulated  and  well 
govei-ned  family,  are  bound  to  conform  their  general  behavior  to 
the  rules  of  propriety,  good  neighborhood,  and  good  manners ; 
and  to  be  decent,  industrious  and  inoffensive  in  their  respective 
stations."  a  "  This  police  power  of  the  state,"  says  Ch.  J.  Red- 
field,  h  extends  to  the  protection  of  the  lives,  limbs,  health,  com-  ' 
fort,  and  quiet  of  all  persons,  and  the  protection  of  all  property 
within  the  state.  It  must  of  course  be  within  the  range  of  legis- 
lative action,  to  define  the  mode  and  manner  in  which,  every  one 
may  so  use  his  own,  as  not  to  injure  others.  And  it  has  been  held 
that  even  the  corporation  of  the  city  of  New  York,  possessed  a 
police  power  so  to  order  the  use  of  private  property  in  the  city,  as 
to  prevent  its  proving  pernicious  to  the  citizens  generally."  c  "  A 
contrary  doctrine,  would  strike  at  the  root  of  all  police  regula- 
tions. Every  right,  from  an  absolute  ownership  in  property,  down 
to  a  mere  easement,  is  purchased  and  held  subject  to  the  restric- 
tion, that  it  shall  be  so  exercised  as  not  toinjiu'e  others.  Though 
at  the  time,  it  be  remote  and  inoffensive,  the  purchaser  is  bound  to 
know  at  his  peril,  that  it  may  become  otherwise,  and  that  it  must 
yield  to  laws  and  regulations  and  remedies  for  the  suppression  of 
nuisances."  Corporations,  enjoy  the  prerogatives  of  government 
to  a  prescribed  extent.  Among  these,  is  the  power  to  pass  by- 
laws, regulating  the  police  power. 

a  i  Black.  Com.  1G2.  h  Thorpe  v.  R.  &  B.  R.  K.  Co.,  27  Vt.  E.  U9. 

c  Stuj-vesant  v.  Mayor  of  New  York,  7  Cow.  GO-1;  Hart  v.   Mayor  of  Albany,  9 
Wend.  593. 


452  THE  rOLICE  rowER. 

The  subject  of  the  police  power  of  the  state,  has  recently  been  a 
subject  of  interesting  and  of  extended  discussion,  and  the  courts 
have,  to  a  certain  extent,  settled  some  important  propositions  in 
relation  thereto  ;  among  which  are  the  following : 

1.  "It  is  within  the  constitutional  authority  of  the  legislature  to 
establish  new  civil  divisions  of  the  state,  embracing  in  the  districts 
so  created,  several  towns,  cities  or  counties,  or  such  portions 
thereof  as  may  be  deemed  appropriate  for  the  general  purposes  of 
civil  administration." 

2.  "  The  organization  ior  police  purposes,  of  districts  not  co-ter- 
minus with  others  recognized  by  the  constitution,  is  not  inconsist- 
ent with  the  continuance  of  such  antecedent  civil  divisions,  for 
every  general  purpose  prescribed  in  the  organic  law." 

3.  "  The  police  powers,  exercised  in  the  towns,  cities  and  coim- 
ties,  respectively,  were  vested  in  the  local  authorities  by  legisla- 
tion, and  not  by  irrevocable  constitutional  grant." 

4.  "  The  legislature  has  authority  to  arrange  the  distribution  of 
these  powers,  as  the  public  exigencies  may  require  ;  apportioning 
•them  to  local  jurisdictions,  to  such  extent  as  the  law-making 
power  deems  appropriate,  and  committing  the  exercise  of  the 
residue,  to  officers  appointed,  as  it  may  see  fit." 

5.  "This  is  a  continuing  legislative  power,  in  virtue  of  which, 
from  time  to  time,  as  occasion  may  require,  jurisdiction  committed 
to  the  towns,  cities  or  counties,  may  be  resumed  and  vested  in 
other  authorities  appointed  by  the  state  governments." 

G.  "  The  state  has  an  interest  in  the  repression  of  disorder,  and 
the  maintenance  of  joeace  and  security  in  every  locality  witliin 
its  Hmits ;  and  if,  from  exceptional  cases,  the  public  good  requires 
that  legislation,  either  permanent,  or  temporary,  be  dhected 
towards  any  particular  locality,  whether  consisting  of  one  county 
or  several  counties,  it  is  within  the  discretion  of  the  legislature  to 
apply  such  legislation,  as,  in  its  judgment,  the  exigency  of  the 
case  may'require;  ai)d  it  is  the  sole  judge  of  the  existence  of  such 
causes."  a 

These  propositions  were  laid  down  in  a  case  where  in  the  opinion 
of  the  court,  the  act  was  one,  in  which  the  ends  it  sought  to  at- 
tain, and  the  efficiency  of  the  agencies  it  sought  to  organize,  was 

a  Teoplc  v.  Slieplierd,  3G  N.  Y.  28G;  Tcoplc  v.  Draper,  15  N.  Y.  54-1. 


THE  POLICE  rOWER.  453 

for  the  preseiTatiou  of  ordt-r  ;  tlio  protoction  (jf  person  and  prop- 
erty; the  detection  and  arrest  of  culpi'its;  and  tliepnnisliment  and 
prevention  of  crime. 

It  is  a  power,  wliicli  like  all  otlier  powers,  may  bo  abnsed.  AVith 
this,  however,  and  with  hardships  and  injustice,  we  have  nothing 
to  do,  in  this  work.  The  peoph',  l)y  their  representatives,  must 
guard  these  abuses  as  best  they  may.  Nor  is  it  needful  to  say, 
that  this  power  is  confined  in  its  exercise,  to  the  principle,  that  the 
use  for  which  it  is  taken,  is  strictly,  what  is  called  public  use  ;  nor 
attempt  to  draw  a  line  that  shall  distinguish  between  public  and 
private  uses.  The  preservation  of  the  life  of  a  citizen,  is  a  matter 
of  public  interest,  much  more,  of  many  citizens.  The  arresting  of 
a  devastating  fire,  or  plague  or  other  calamit}',  is  also  a  matter  of 
public  interest ;  and  yet,  in  the  lirst  instance,  it  might  seem  to 
aftect  only  private  individuals.  It  may  be,  that  in  the  one  case, 
an  overwdielming  necessity  would  require  the  taking  of  the  life  of 
another  citizen  which  is  also  a  matter  of  public  interest ;  and  in 
the  other  case,  tlie  same  necessity  might  require  the  destraction 
of  private  property.  In  the  first  case  it  is  the  sacrifice  of  one  life, 
for  the  saving  of  many  lives  ;  in  the  other  the  sacrifice  of  the  pro- 
perty of  one  for  the  necessary  protection  of  the  property  of  many. 

Looking  at  this  power,  then,  as  it  seems  to  be  a  power  conceded, 
b}'  our  own,  and  other  states,  whether  it  is  exercised  as  it  exists  at 
common  law,  tolerated  by  the  constitution,  or  as  regulated  by 
legislative  enactments,  not  inhibited  by  the  constitution,  we  may 
regard  it  as  a  settled  principle,  growing  out  of  the  nature  of  well- 
ordered  civil  societ}-,  that  every  holder  of  property,  and  rights  of 
property,  however  absolute  andun^uahfied  maybe  his  title,  holds 
it  under  the  implied  liabihty  that  it  may  be  so  regulated  that  its 
use  shall  not  be  injurious  to  the  equal  enjoyment  of  others,  having 
an  equal  right  to  the  enjoyment  of  their  property,  nor  injurious  to 
the  rights  of  the  community.  All  property  is  to  be  regarded  as 
held  by  the  citizen  subject  to  those  general  regulations  which  are 
necessary  to  the  common  good  and  general  welfare,  a 

This  power,  however,  differs  fi'om  the  right  of  eminent  domain. 
The  latter,  is  the  right  of  government  to  take  and  appropriate  pri- 
vate property  to  public  use  when  the  public  exigency  requires  it  ; 

a  Commonwealth  v.  Alger,  7  Cusbiug  85. 


454  THE   POLICE  POWER. 

wliicii  can  be  done  only  on  condition  of  providing  a  reasonable 
compensation  therefor.  This  power,  is  ihe  police  poicer,  which  is 
subject  to  no  such  condition,  "  It  is  a  power  much  easier  to  per- 
ceive and  reahze  the  existence  of,  and  to  learn  its  source,  and  the 
pruiciple  of  its  power,  than  to  define  its  boundaries,  or  prescribe 
hmits  to  its  exercise.  There  are  many  cases  where  such  a  power 
is  exercised  by  well-ordered  governments,  and  where  its  fitness  is 
so  obvious  that  every  reasonable  mind  will  acknowledge  its  justice. 
Under  this  power  are  enacted  statutes  ■\^•llicl^  prohibit  the  storage 
of  powder  within  cities,  and  near  to  habitations  and  public  high- 
Avays ;  to  restrain  and  regulate  the  erection  of  wooden  buildings 
within  cities  and  populous  towns ;  to  prohibit  buildings  from  being 
used  as  hospitals  for  contagious  diseases  ;  for  the  preventing  the 
carrying  on  of  noxious  or  offensive  trades  ;  to  prohibit  the  erection 
or  raising  of  dams  which  may  cause  stagnant  water  to  stand  or 
spread  over  lands  near  inhabited  towns,  villages  or  cities,  thereby 
causing  noxious  exhalations,  injurious  to  health  and  dangerous  to 
hfe.  a 

"  The  prohibition  in  such  case,  though  it  may  greatly  diminish 
the  profits  to  the  ov/ner,  it  does  not  give  liii\i  a  right  to  compensa- 
tion for  its  use.  It  is  not  such  an  appropriation  to  public  use  of 
private  property  as  conies  within  the  power  of  eminent  domain 
and  the  right  of  compensation  to  the  proprietor.  Doubtless  the 
proprietor  of  a  vacant  lot  in  a  city,  might  obtain  a  better  percent- 
age by  way  of  rent,  by  erecting  a  wooden,  than  a  brick  or  stone 
tenement.  The  owner  of  a  warehouse  could  store  his  own  powder 
with  less  expense  of  transportation  in  his  city  building,  than  in  a 
place  remote ;  a  landlord  might  let  his  building  for  a  small  pox 
hospital  or  slaughter  house  for  an  increased  rent.  They  are 
restrained  by  this  power ;  not  because  the  public  take  or  use  it  for 
any  benefit  or  profit  to  themselves,  but  because  the  use  would  be 
noxious,  and  contrary  to  the  maxim  "  Sic  utcre  fuo,  id  cdieimm  nou 
laedas."  These  are  a  few  of  the  many  and  various  cases,  where 
this  police  power  may  be  exercised.  ^ 

a  Id.  86;  Hart  v.  Mayor,  9  Weud.  571  ;  People  v.  Draper,  25  Barb.  374  ;  Com- 
monwealth V.  Tewksbiiry,  11  Met.  55,  57  ;  Baker  v.  City  of  Boston,  12  Tick.  184; 
Mayor,  &c.  v.  Miln,  11  Peters  102,  132, 

Note  3. — It  is  settled  law  that  it  is  competent  for  the  legislature  to  regulate  the 
sale  and  disposition  of  liquors.     Such  is  the  effect  of  the  "  Act  to  regulate  the  sale 


THE  rOLICE  I'OWEPi.  455 

This  police  power,  "wliicli,  as  has  been  said,  is  inherent  in  every 
government,  and  not  restricted  by  our  constitutions,  can  be  brought 
into  active  exercise  for  the  protection  of  the  citizen  bv  the  sover- 
eign power  in  all  needful  emergencies.  Eveiy  sovereign  statu 
possesses  Avithin  itself,  absolute  and  unlimited  legislative  power, 
except  so  far  as  it  is  prohibited  by  the  fundamental  law.  There 
is  no  arbiter  in  such  case,  beyond  the  state  itself,  to  determine 
what  legislation  is  just.  Whatever  therefore  is  so  declared,  by 
the  ultimate  [lowev  of  a  state,  as  there  can  be  no  appe£il,  must,  in 
view  of  the  law,  be  taken  to  be  just  and  right.  By  the  exercise  of 
this  police  power,  the  legislature  may  protect  the  mass  of  citizens 
by  the  control  of  existing  corporations,  such  for  instance,  as  rail- 
roads, in  protecting  of  the  hves,  limbs,  health,  comfort,  and  quiet 
of  all  persons,  and  the  protection  of  their  property,  against  aggre.s- 

of  iutoxiciitiny  lienors  witbiu  the  Jlclropolitiiu  District  of  the  State  of  New  York," 
pass'cd  April  H,  18GG.  Therefore,  the  third  section  of  the  act  is  not  unconstitu- 
tional, as  tending  to  divest  the  owner  of  his  propertj'  without  due  compensation. 
In  the  Matter  of  James  DeYauceue,  31  How.  Pr.  R.  289.  Nor  is  the  act  of  18GG, 
creating  the  Metropolitan  Board  of  Health  of  New  York,  unconstitutional,  as  con- 
ferring upon  the  board  the  right  to  deprive  a  citizen  of  his  liberty  or  property 
without  due  process  of  law.  Cooi^er  v.  Schultz,  32  How.  Pr.  R.  107.  This  was 
an  act  entitled  "  An  act  to  create  a  Metropolitan  Sanitary  District  and  Board  of 
Health  therein,  for  the  jireservation  of  life  and  health,  and  to  prevent  the  spread 
of  disease,"  and  it  gave  large  powers  to  carry  out  the  objects  expressed  in  its  title. 
The  government,  it  was  held,  clearlj'  i)ossessed  the  power  itself,  for  the  safety  and 
health  of  its  citizens;  and  they  could  delegate  this  jiower  to  a  proper  body  of  men. 
The  abatement  of  a  nuisance  is  not  the  appropriation  of  private  property  to  pri- 
vate use  without  the  judgment  of  one's  peers.  It  is  the  suppression  of  a  thing 
declared  to  be  illegal  by  the  laws  of  the  land,  and  which  may  be  destroyed  by  any 
citizen,  if  done  in  such  a  manner  as  to  invade  no  law  of  property,  or  for  the  pre- 
ceiwation  of  the  peace,  and  when  where  t^e  law  invests  a  public  body  with  the 
power  to  do  such  an  act,  in  express  terms,  by  no  rule  of  construction  can  such  a 
law  be  held  to  be  unconstitutional.  Weil  v.  Schultz,  33  How.  Pr.  R.  7.  Though 
the  digging  of  a  ditch  upon  the  lands  of  a  private  owner,  under  the  authority  of 
the  legislature,  for  the  purpose  of  draining  such  land,  and  that  of  an  adjoining 
proprietor,  is,  it  has  been  held,  a  taking  of  propert}'  within  article  one,  sections 
*dx  and  seven,  of  the  constitution  of  this  state,  of  1846,  and  the  act  of  the  legisla- 
ture, professing  to  authorize  such  taking  void,  where  it  does  not  provide  for  the 
payment  of  a  just  compensation  to  be  ascertained  by  a  jury,  or  by  commissioners 
appointed  by  a  court  of  record.  People  v.  Nearing,  27  N.  Y.  306.  The  mode  of 
assessing  and  of  ai^iiortioning  the  compensation  and  exjicuscs  of  executing  the 
work,  however,  upon  those  benefited  thereby,  is  wholly  wilhin  (he  discretion  of 
the  legislature.     Id. 


456  THE  POLICE   rOWEK. 

sion,  and  against  "svhat  may  be  declared  negligence,  in  the  manage- 
ment of  such  corporations. 

The  maxim,  which  has  been  quoted,  "  Sic  ulere  tiio  est  cdienum 
non  lacdas,''  is  one  of  universal  application,  and  it  must,  of  com*se, 
be  within  the  range  of  legislative  action,  to  define  the  mode  and 
the  manner  in  which  every  one,  (which  includes  railroads,)  may  so 
use  his  own  as  not  to  mjure  others,  a  So  far  as  railroads  are  con- 
cerned, this  police  power  is  two-fold.  1.  The  police  of  the  roads, 
which,  in  the  absence  of  legislative  control,  the  corporations  them- 
selves exercise  over  their  operatives,  and  to  some  extent,  over  all 
who  do  business  with  them,  or  upon  their  gromids,  through  general 
statutes.  And,  2.  By  the  general  police  power  of  the  state,  by 
which  persons  and  property  are  subjected  to  all  kinds  of  reason- 
able restraints  and  burthens,  in  order  to  secure  the  general  com- 
fort, health  and  prosperity  of  the  state. 

Of  the  perfect  right  and  authority  to  do  this,  no  serious  question 
ever  was,  and  upon  acknowledged  principles,  never  can  be  made. 
So  far  as  natural  persons  are  concerned,  it  has  not  been  doubted, 
and  no  good  reason  is  perceived,  wdiy  it  should  be  doubted  in  the 
case  of  artificial  persons.  Upon  this  principle,  the  legislature  may 
requ.ire,  even  of  existing,  as  well  as  all  future  railroad  corporations, 
to  maintain  cattle  guards  at  aU  crossings,  and  to  erect  and  main- 
tain fences  and  gates  upon  the  sides  of  the  road,  and  farm 
crossings ;  and  to  respond  in  damages  for  all  cattle  injured,  or 
other  damages  for  negligent  omission  of  such  structures  ;  and  this 
police  power  might  doubtless  be  extended  so  as  to  include  the 
supervision  of  track,  tending  switches,  running  upon  the  time  of 
other  trains,  running  a  road  with  a  single  track,  using  improper 
rails,  not  using  proper  precaution  by  way  of  safety  beams,  in  case 
of  the  breaking  of  axles,  the  number  of  brakemen  upon  a  train, 
with  reference  to  the  number  of  cars,  employing  intemperate  or 
incompetent  engineers  and  servants,  running  beyond  a  given  rate  of 
speed,  and  all  kindred  and  similar  protections  to  any  extent,  may  be 
the  subject  of  legislation' ;  most  of  which  have  been,  and  are  now, 
subjects  of  judicial  determination,  h     In  the  state  of  Connecticut, 

a  Thorp  v..PaitlaiKl  &  Burliugton  E.  R.  Co.,  27  Vt.  E.  149. 
h  Thorp  V.  Pi.  &  B.  E.  E.  Co.,  27  Yt.  150;  Hyeman  v.  West  E.  E.  Corporation, 
16  Barb.  353,  S.  C.  13  N.  Y.  1. 


THE  POLICE   I'OWER.  457 

the  statute  a  requires  tlie  trains  upon  all  their  railroads,  to  come  to  a 
stand  before  passing  a  drawbridge,  and  not  permit  a  train  to  pass 
a  switch,  unless  there  be  a  switchman  standing  at  the  junction 
with  a  white  flag,  &c.  And  in  the  state  of  Massachusetts,  the  same 
provision  is  made,  (among  otlu^r  regulations,)  before  crossing 
another  railroad,  h  All  this,  is  by  virtue  of  the  police  power  of  the 
state. 

The  legislature  ma}',  no  doubt,  prohibit  railroads  from  carryuig 
freight,  if  they  deemed  it  prejudicial  to  the  public  interests  ;  and 
probably,  might  make  them  insurers  of  the  lives  of  their  pas- 
sengers. The  statutes  giving  relatives  a  right  to  recover  damages 
when  any  person  is  killed,  is  one  step  in  that  direction,  and  has 
wrought  an  important  change  in  the  law  in  that  regard. 

So  too,  it  is  believed,  that  under  this  police  power,  the  legisla- 
ture might  with  perfect  justice,  if  sound  policy  was  thought  to  re- 
quire it,  make  tov.ns  and  counties  severally  responsible  for  dam- 
ages, afterward  arising,  from  robbery,  or  other  crimes  committed 
whereby  its  citizens,  or  others,  should  be  subjected  to  loss  of 
property.  Indeed,  statutes  have  been  passed  to  this  end,  in  this 
state,  for  the  payment  by  counties,  and  cities,  for  real  or  personal 
property  destroyed  or  injured  in  consequence  of  any  mob  or  riot 
occun'iug  in  such  county  or  cit}'.  c  This  is  taking  private  property 
neither  by  right  of  eminent  domain,  or  the  taxing  power. 

In  Massachusetts,  towns  are  made  liable  to  damages  for  loss  of 
life  or  property  by  reason  of  their  highways  being  out  of  repau-.  d 
And  other  states  have  enacted  like  statutes  under  the  same  police 
power.  In  Connecticut,  e  New  Hampshire,  /  and  Pdiode  Island,  g 
similar  enactments  have  been  made  by  the  legislature,  and  it  is 
believed  in  other  states,  hke  statutes  exist. 

The  statutes  regulating  division  fences  between  the  proprietors 
of  adjoining  lands,  and  rcquirmg  them  to  be  of  a  given  height  and 
quality ; — restraining  wild,  or  vicious  domestic  animals  dangerous  to 
persons  or  property,  and  to  compensate  the  persons  and  owners  of 

a  General  Statutes,  201,  §^  510,  Oil. 
h  General  Statutes,  3G2,  §  93. 

c  Laws  of  N.  Y.  of  1855,  Ch.  428;  Stone  v.  Mayor,  ic,  25  Wend.  181. 
d  General  Statutes  2i7,  §§  21,  22. 
c  General  Statutes  493,  §  G. 

/  Compiled  Statutes  149,  §  1.  g  Rev.  St.  125,  §  14, 

58 


458  THE  rOLICE  rOWEE. 

property  for  injuries; — to  destroy  noxious  weeds  ; — requiring  rail- 
roads to  ring  a  bell  or  blow  a  whistle  in  approacliiiig  and  crossing 
liighways  and  streets  ;  and  creating  liability  to  penalties  for  neglect 
of  sucli  requirements,  x4.ll  these,  and  numerous  other  enactments 
of  the  legislature  coming  fairly  under  the  police  power,  are 
wise,  and  reasonable,  and  legal  provisions,  to  protect  the  pubhc 
against  danger  to  their  persons,  or  to  loss  of  property ;  indeed  the 
instances  and  illiistrations  are  too  numerous  to  attempt  a  recital. 
Those  given,  will  suflice  to  establish  the  power  and  character  of 
them. 

The  limit  to  the  exercise  of  the  police  power,  can  only  be  this : 
the  regulation  must  have  reference  to  the  comfort — the  safety — or 
the  welfare  of  society;  it  must  not  be  in  conflict  with  the  provisions 
of  the  constitution.  And  in  case  of  corporations,  it  must  not, 
under  mere  pretense  of  regulation,  take  from  them,  any  of  the  essen- 
tial rights  their  charter  confers,  a  This  is  not  intended  as  a  denial 
of  the  power  of  the  legislature  to  alter,  modify  or  repeal  a  charter 
in  certain  cases. 

One  of  the  most  important  of  these  illustrations  of  the  police 
power  under  state  constitutions,  is  that  of  regulations  afiecting 
commerce.  Among  these,  quarantine  regulations,  and  health  laws 
of  every  description,  will  readily  suggest  themselves,  and  these 
are,  or  may  be  sometimes,  carried  to  the  extent  of  ordering  the 
destruction  of  private  property  when  infected  with  disease,  or 
otherwise  dangerous,  h  These  regulations  have  not  been  ques- 
tioned as  to  their  authority.  The  right  to  pass  inspection  laws,  and 
to  levy  duties,  so  far  as  may  be  necessary  to  render  them  effectual, 
is  an  exj)ress  power  by  the  constitution  of  the  United  States,  c 

The  principle  involved  under  this  point,  is  well  and  quite  fully 
expressed  by  the  supreme  court  of  this  state,  d  in  giving  construc- 
tion to  a  statute,  conferring  authority  upon  harbor  masters,  to 
regulate  and  station  aU  ships  and  vessels  lying  in  the  East  and 
North  rivers,  within  the  limits  of  the  city  of  New  York.  It  was 
said,  "  this  statute  was  passed  for  the  preservation  of  good  order 
in  the  harbor.     It  appears  to  be  a  necessary  poUce  regulation,  and 

a  Cooley  on  Const.  Lim.  57-7. 

J)  Cooley  on  Const.  Lim.  58i.  c  Art.  1,  section  10. 

(]  Veuderbitt  v.  Adams  7  Cow.  E.  348  to  353. 


THE  rOLICE  POWEll.  459 

not  void,  although  it  may  interfere,  in  some  measure,  with  individ- 
ual rights.  The  harbor  master  had  jurisdiction  under  the  act  over 
all  private  wharves.  They  were  subject  to  all  police  regulations. 
The  power  exercised  in  this  case  is  esscmtially  necessary  for  the 
purpose  of  protecting  all  concerned.  It  is  not,  —in  the  legitimate 
sense  of  the  term, — a  violation  of  any  right ;  but  the  exercise  of 
a  poAver  indispensably  necessary,  where  an  extensive  commerce 
is  earned  on."  "  Police  regulations  are  legal  and  bindmg,  because 
for  the  general  benefit ;  and  do  not  proceed  to  the  length  of  impair- 
ing any  right  in  the  proper  sense  of  that  term."  "  The  sovereign 
power  in  a  community,  therefore,  may,  and  ought  to  prescribe  the 
manner  of  exercising  individual  rights  over  property.  It  is  for 
the  better  protection  and  ('ujoyment  of  that  absolute  dominion 
which  the  individual  claims.  The  power  rests  on  the  implied  right 
and  duty  of  the  supreme  power  to  protect  all  by  statutory  regu- 
lations, so  that  on  the  whole,  the  benefit  of  all  is  promoted.  Every 
regulation  in  a  city  may  and  does,  in  some  sense,  limit  and  restrict 
the  absolute  right  that  existed  previously.  But  this  is  not  consid- 
ered as  an  injuiy.  So  far  from  it,  the  individual,  as  well  as 
others,  is  supposed  to  be  benefited.  It  may  then  be  said,  tliat 
such  a  power  is  incident  to  every  well  regulated  society ;  and  with- 
out which  it  could  not  well  exist." 

A  case  is  then  supposed,  where  the  legislature  should  authorize 
the  grant  of  a  road  through  the  wild  lands  of  A.  without  his  con- 
sent ;  a  right  that  has  been  assumed  and  acted  upon  evor  since  we 
became  an  independent  government.  No  compensation  is  allowed 
in  such  cases  to  the  owner.  Can  he  defeat  the  operation  of  such 
a  law,  by  saying  liis  private  right  is  invaded  ?  Such  a  lav/,  (it  is 
then  said,)  is  constitutional  and  obligatory ;  because  in  many 
cases,  necessary  for  the  public  benefit,  and  not  deemed  injmious 
to  the  individual  whose  land  is  taken,  a 

"  The  line  of  distinction  between  that  which  constitutes  an  in- 
terference with  commerce,  and  that  which  is  a  police  regulation,  is 
sometimes,  exceedingly  dim  and  shadowy,  and  it  is  not  to  bo  won- 
dered at,  that  learned  jurists  differ  when  endeavormg  to  classify 
the  cases  which  arise."  h 

a  See  also  case  of  the  owners  oi  the  Brig  Gray  v.  Owners  of  Ship  JohnFraser, 
20  How.  U.  S.  K.  187,  8.  b  Cooley  on  Lim.  586. 


4.G0  THE  rOLICE   rOWEE. 

Congress,  under  the  federal  constitution,  has  the  undoubted 
power  to  regidate  commerce,  and  whenever  it  is  pleased  to  exert 
its  power  upon  the  subjects  so  conferred,  it  is  probable  the  state 
power  is  excluded  and  even  where  this  power  is  not  exercised  by 
the  general  government,  the  state  power  is  not  always  unlimited. 
This  power  was  attempted  by  the  state  of  Maryland,  requiring  all 
importers  of  foreign  goods  to  take  out  a  license,  for  which  they 
should  pay  $50  to  the  state,  and  in  case  of  neglect  or  refusal,  to 
subject  the  importer  to  certain  penalties  and  forfeitures.  This 
question  was  brought  into  the  federal  court,  a  The  act  of  the 
state  legislature  was  held  to  be  repugnant  to  that  provision  in  the 
constitution  of  the  United  States,  which  empowers  congress  to 
regidate  commerce  Avith  foreign  nations,  and  among  the  several 
states,  Arc.  That  the  authority  given  by  congress  to  import,  in- 
cluded the  power  to  sell  the  thing  imported.  The  Maryland  act 
denied  to  the  importer  the  right  of  using  the  privilege  he  had  pur- 
chased of  the  United  States,  until  he  should  have  made  another 
purchase  of  it  from  the  state  of  Maryland.  This  was  not  such  a 
police  power  as  the  state  could  exercise. 

So  too,  in  a  case,  in  which  the  state  of  New  York,  attempted 
by  its  legislature  to  exercise  this  pohce  power  by  imposing  taxes 
upon  alien  passengers  arriving  at  the  port  of  New  York,  h  it  was 
held  by  the  judges  of  the  federal  court  c  that  this  statute  was  in 
conflict  with  the  provisions  of  the  constitution  of  the  United 
States.  But  in  another  case,  quite  difficult  to  distinguish  from 
this,  a  statute  of  this  state  which  required  the  master  of  eveiy 
vessel  arriving  in  the  port  of  New  Y'ork,  from  any  foreign  port,  or 
from  a  port  of  any  of  the  other  of  the  states  of  the  Union,  to 
make  a  report  in  writing,  containing  the  names,  ages,  and  last 
legal  settlement  of  every  person  who  shall  have  been  on  board  the 
vessel  commanded  by  him  during  the  voyage,  &c.,  to  be  stated  in  the 
report  under  penalties  j)rescribed  in  the  act,  was  held  to  be  within 
the  police  power  of  the  state,  and  not  in  conflict  with  the  provisions 
of  the  constitution  of  the  United  States,  d    It  was  also  held,  that 

a  Brown  v.  State  of  Maryland,  12  Wheat  419,  445. 

6  1  Eev.  Stat.  445. 

c  Smitli  V.  Turner,  7  How.  U.  S.  R.  283 

d  Mayor,  &c.,  v.  Miln,  11  Peters  102, 


THE   POLICE   POWER.  461 

persons  are  not  the  subject  of  commerce,  and  not  being  imported 
goods,  they  do  not  fall  ^vithin  the  reasoning  founded  upon  the  con- 
struction of  a  power  given  to  congress,  "to  regulate  commerce," 
and  the  prohibition  of  the  states  from  imposing  a  duty  on  im- 
ported goods. 

"  A  state  has  the  same  undeniable  and  unlimited  jurisdiction 
over  all  persons  and  things  within  its  territorial  hmits,  as  any  for- 
eign nation,  wdien  that  jurisdiction  is  not  surrendered  to  or  re- 
strained  by  the  constitution  of  the  United  States.  It  is  not  only 
the  right,  but  the  bounden  and  solemn  duty  of  a  state,  to  advance 
the  safety,  happiness,  and  prosperity  of  its  people,  and  to  provide 
for  its  general  welfare,  by  any  and  every  act  of  legislation  which 
it  may  deem  to  be  conducive  to  these  ends  ;  where  the  power  over 
the  particular  subject  or  the  manner  of  its  exercise,  are  not  sur- 
rendered or  restrained  by  the  constitution  of  the  United  States. 
All  those  powers  which  relate  merely  to  municipal  legislation,  or 
^vhich  may  more  properly  be  called  internal  j^oUce,  are  not  surren- 
dered or  restrained ;  and  consequently,  in  relation  to  these,  the 
authority  of  a  state  is  complete,  unquaUfied,  and  exclusive." 

"  It  is  at  all  times  diiiicult  to  define  any  subject  with  precision 
and  accuracy.  It  is  emphatically  so  in  relation  to  a  subject  so 
diversified  and  various  (if  not  conflicting)  as  this.  It  may,  how- 
ever, be  said,  that  every  law  comes  within  the  regulation  of  police, 
which  concerns  the  welfare  of  the  whole  people  of  a  state,  or  any 
individual  within  it,  whether  it  relates  to  their  rights  or  their 
duties ;  whether  it  respects  them  as  men,  or  as  citizens  of  the  state 
in  their  public  or  private  relations ;  whether  it  relates  to  persons 
or  property,  of  the  whole  people  of  a  state,  or  of  any  individual 
within  it ;  and  w^iose  operation  is  within  the  territorial  limits  of 
the  state,  and  upon  the  persons  and  things  within  its  jurisdiction." 
This  may  be  exemplified  by  the  right  of  every  state  to  punish 
persons,  who  commit  ofiences  against  its  criminal  laws  within  its 
territory. 

So  then,  it  must  follow,  that  while  a  state  is  acting  within  the 
scope  of  its  legitimate  power,  as  to  the  end  to  be  attained,  it  may 
use  whatever  means,  being  appropriate  to  the  end,  it  may  think 
fit,  although  such  means  may  be  the  same,  or  so  nearly  the  same, 
as  scarcely  to  be  distinguished  from  those  adopted  by  congress 


4G2  THE   POLICE  TOViTlE. 

acting  imJer  a  different  power ;  subject,  only,  to  this  limitation : 
tliat  in  the  event  of  colhsion,  the  law  of  the  state  must  yield  to  the 
law  of  congress. 

Thp  line  which  separates  the  regulations  of  commerce,  from 
those  of  state  police,  is  sometimes  not  so  distinct  as  to  prevent 
conflict  of  opinion ;  but  fortunately  for  the  public  security,  there 
is  the  conservative  pov\'er  of  the  judiciary  to  determine  the  right. 
One  of  the  questions  so  approaching  this  hne,  is  that  of  the  inspec- 
tion laws  of  the  states,  which  are  claimed  to  be  regulations  of 
commerce. 

It  was  well  said  by  the  supreme  court  of  the  United  States,  a 
"  that  inspection  laws  may  have  a  remote  and  considerable  influ- 
ence on  commerce,  will  not  be  denied  ;  but  that  a  power  to  regu- 
late commerce,  is  the  source  from  which  the  right  to  pass  them  is 
derived,  cannot  be  admitted.  The  object  of  inspection  laws,  is  to 
improve  the  quality  of  articles  produced  by  the  labor  of  a  country  | 
to  lit  them  for  exportation ;  or,  it  may  be,  for  domestic  use.  They 
act  upon  the  subject  before  it  becomes  an  article  of  foreign  com- 
merce, or  of  commerce  among  the  states,  and  prepare  it  for  that 
purpose.  They  form  a  portion  of  that  immense  mass  of  legisla- 
tion, which  embraces  ever^ahing  within  the  territory  of  a  state, 
not  surrendered  to  the  general  government  :  all  of  which  can  be 
m  jst  advantageously  exercised  by  the  states  themselves.  Inspec- 
tion laws,  quarantine  laws,  health  laws  of  every  description,  as 
well  as  laws  for  regulating  the  internal  commerce  of  a  state,  and 
those  which  resj)ect  turnpike  roads,  ferries,  etc.,  are  component 
parts  of  this  mass." 

"No  direct  general  power  over  these  objects  is  granted  to  con- 
gress ;  and  consequently  they  remain  to  state  legislation.  If  the 
legislative  power  of  the  Union  can  reach  them,  it  must  be  for  na- 
tional purposes  ;  it  must  be  where  the  power  is  expressly  given 
for  a  special  j^urpose,  or  is  clearly  incidental  to  some  power  which 
is  expressly  given.  It  is  obvious,  that  the  government  of  the 
Union,  in  the  exercise  of  its  express  powers,  that,  for  example  of 
"regulating  commerce  wdtli  foreign  nations  and  among  the  states," 
may  use  means  that  may  also  be  employed  by  a  state,  in  the  exer- 
cise of  its  acknowledged  powers ;  that,  for  example,  of  regulatiiig 

a  Gibbous  v.  Ojilcn,  9  ■\Vheat.  203,  201,  ic. 


THE   POLICE  POWER.  4G3 

commerce  witliiii  the  state.  If  congress  license  vessels  to  sail 
from  one  j)ort  to  another  in  the  same  state,  the  act  is  supposed  to 
be,  necessarily  incidental  to  the  power  expressly  gi-anted  to  con- 
gress, and  implies  no  claim  of  a  direct  power  to  regulate  the  purely 
internal  commerce  of  a  state,  or  to  act  directly  on  its  system  of 
police  ' 

"  So  a  state  in  passuig  laws  on  subjects  acknowledged  to  be 
within  its  control,  and  with  a  view  to  those  subjects  shall  adopt  a 
measure  of  the  same  character  with  one  which  congress  may 
adopt,  it  does  not  derive  its  authority  from  the  particular  power 
Avhicli  has  been  granted,  but  from  some  other,  which  remains  with 
the  state,  and  may  be  executed  by  the  same  means." 

"  All  experience  shows,  tliat  the  same  measures,  or  measures 
scarcely  distinguishable  from  each  other,  may  flow  from  distinct 
powers ;  but  this  docs  not  prove  that  the  powers  themselves  are 
identical.  Although  the  means  used  in  their  execution  may  some- 
times approach  each  other  so  nearly  as  to  be  confounded,  there 
arc  other  situations,  in  which  they  are  sufficiently  distmct  to  estab- 
lish  their  individuality." 

"  In  our  complex  system,  presenting  the  rare  and  difficult  scheme 
(.f  one  general  government,  whose  action  extends  over  the  whole, 
but  which  possesses  only  certam  enumerated  i)owers  ;  and  of 
numerous  state  governments  which  retain  and  exercise  all  powers 
not  delegated  to  the  Union,  contests  respecting  power  must  arise. 
Were  it  even  otherwise,  the  measures  taken  by  the  respective  gov- 
ernments to  execute  their  acknowledged  powers,  would  often  be  of 
the  same  description,  and  might  sometimes  interfere.  This  how- 
ever does  not  prove  that  the  one  is  exercising,  or  has  a  right  to 
exercise  the  powers  of  the  other."  * 

Note  -i. — Article  1,  section  8,  of  the  coustitutiou  of  the  United  States,  which 
grants  to  congress  authority  to  regulate  commerce  with  foreign  nations  ami 
nmong  the  several  states,  is  not  so  exclusive  as  to  prohibit  the  states  from  legis- 
liting  upon  the  subject  of  pilots,  if  congress  has  not  seen  fit  to  legislate  upon  that 
same  subject.  Stilwcll  v.  Rayuor,  1  Daley,  47;  12  How.  U.  S.  E.  299.  And  in 
c.bsence  of  federal  legislation,  the  states  have  a  right  to  protect  their  commerce- 
by  exercising  on  the  neighboring  seas,  the  power  accorded  for  that  purpose  to 
every  maritime  people.  Cisco  v.  Eoberts,  36  N.  Y.  292,  and  cases  cited.  The 
regulations  of  port  pilotage,  stand  substantially  upon  the  same  footing  with  our 
quarantine  laws.  It  is  the  right,  and  duty  of  the  state,  by  appropriate  legislation 
to  guard  the  public  health,  and  the  security  of  general  commerce,  and  to  pi-ovide 


46-4  THE   rOLICE  POWER. 

But  this  is  borclcriiig  upou  the  line  of  the  conflict  of  laws,  which 
it  is  no  purpose  of  this  work  to  enter  npon.  The  cases  cited  in 
the  note,  will  be  found  in  then-  reasoning  to  have  been  quite  ex- 
haustive of  the  subject,  and  are  full  of  learning  on  the  question  of 
the  extent  of  the  poUce  power  of  the  states.  It  is  more  our  object 
to  exhibit  the  existence  of  the  police  power  in  the  state,  as  a 
necessar}'  and  useful  power,  and  to  defend  it  against  the  charge 
often  made  as  to  its  despotic,  oppressive  and  unconstitutional 
character,  than  to  attempt  to  enumerate  the  multiplied  subjects 
which  are  included  within  the  power. 

Among  the  subjects  included  hi-  this  police  power,  is  that  of  re- 
quiring the  observance  of  the  first  day  of  the  week  as  the  christian ' 
Sabbath,  as  to  which  the  statutes  of  the  state  have  provided  pen- 
alties for  their  violation.  It  neither  interferes  with  the  religious 
belief  of  any  citizen,  nor  with  any  doctrine  of  rehgious  faith  or 
practice.  It  is  no  violation  of  the  constitution  which  allows  the 
free  enjoyment  of  free  profession   and  worship,  without  discrimi- 

agaiust  the  dangers  to  wliicli  every  maritime  iieople  are  exposed  by  iutcrcepting 
aud  averting  them  on  the  sea,  without  the  bounds  of  exclusive  territorial  do- 
minion. Gilmore  V.  Philadelphia,  3  Walh  730.  The  states  have  always  exercised 
this  power,  aud  from  the  nature  aud  objects  of  the  two  systems  of  government, 
they  must  always  continue  to  exercise  it,  subject  however  in  all  cases,  to  the 
paramount  authority  of  congress,  whenever  the  power  of  the  states  shall  be  ex- 
erted within  the  sphere  of  the  commercial  power  which  belongs  to  the  nation. 

The  states  may  exercise  concurrent  or  independent  power  in  all  cases  but 
three.  1st.  "Where  the  power  is  lodged  exclusively  in  the  federal  constitution. 
2d.  "Where  it  is  given  to  the  United  States,  and  prohibited  to  the  states.  3d. "Where 
from  the  nature  and  subjects  of  the  jDower,  it  must  necessarily  be  exercised  by 
the  national  government  exclusively.  Houston  v.  Moore,  5  "^"heat.  49.  It  is  no 
objection  to  distinct  substantive  iDOwers,  that  they  may  be  exercised  on  the  same 
subject.  It  is  not  possible  to  fix  definitely  their  respective  boundaries.  In  some 
instances  their  action  becomes  blended;  in  some  the  action  of  the  state  limits  or 
displaces  the  action  of  the  nation;  in  others  the  action  of  the  state  is  void,  be- 
cause it  seeks  to  reach  objects  beyond  the  limits  of  state  authority.  Gilmore  v. 
Philadelphia,  3  "Wall.  730.  So,  an  act  of  the  legislature  of  New  York  providing 
for  the  appointment  of  harbor  masters  in  the  city  of  New  York,  and  their  fees,  &c. , 
does  not  conflict  with  the  i^rovisions  of  the  "United  States  constitution  giving 
power  to  congress  to  collect  duties  and  regulate  commerce.  Benedict  v.  Vander- 
bilt,  25  How.  Pr.R.  209.  But,  an  act  of  the  same  state  imposing  a  special  tax  on 
every  sale  made  by  public  auction,  &c.,  of  merchandize  imported  from  any  place 
beyond  the  Cape  of  Good  Hope,  is  imconstitutional  and  void.  People  v.  Jloring, 
47  Barb.  G42. 


THE  POLICE  rOWER.  405 

nation,  or  preference,  to  ull  nuinkiud.  It  creates  no  legal  religion 
in  the  state.  The  christian  religion  is  recognized  as  a  part  of  tlie 
common  law  of  tliis  state.  The  observance  of  this  day,  does  not 
interfere  with  any  natural  right,  or  -svitli  the  equal  right  of  any 
citizen  to  entertain  any  other  behcf.  a  It  merely  restrains  the 
people  from  secular  pursuits  and  practices  -which  the  legislature 
deem  hurtful  to  the  morals  and  good  order  of  society.  This  is 
within  the  legislative  power.  So  is  the  right  to  declare  void  all 
contracts  made  on  tliat  day.  It  does  not  touch  private  property, 
or  impair  its  value. 

The  christian  religion,  as  a  part  of  the  common  law  of  England, 
can  be  traced  back  by  positive  legislation,  (if  legislation  it  may  bo 
called,)  to  the  day  of  tlie  Saxon  Kings.  The  code  of  King  Alfred 
commences  with  an  enactment  of  the  ten  commandments ;  it 
recites  the  advent  and  passion  of  our  Savior ;  the  founding  of  the 
church  ;  the  mission  of  the  Apostles,  and  the  letter  issued  from 
the  church  at  Jerusalem,  recorded  in  the  fifteenth  chapter  of  Acts, 
verse  twenty-three  ttc.  To  this  summary  was  added  the  following 
remarkable  words  :  "  From  this,  our  doom,  a  man  may  remember, 
that  he  judge  every  one  righteously  ;  he  need  no  other  doom  book." 
These  edicts,  like  most  of  what  are  called  the  early  statutes  of 
England,  became  in  time  the  common  law,  and  continued  to  be 
such,  down  to  the  time  of  our  American  colonization,  and  wc 
boiTOwed  it  from  thence,  and  made  it,  the  ground  work  of  our  own  ; 
and  afterwards  adopted  the  English  common  law  by  our  wiitten 
constitutions,  although  wc  rejected  all  union  between  church  and 
state,  as  a  part  of  the  fundamental  organization. 

Though  in  the  political  organization  of  the  national  and  state 
governments,  there  was  a  complete  severance  between  the  organ- 
ized church,  and  the  organized  state,  there  was  no  intended  nega- 
tive of  the  doctrines  or  precepts  of 'the  christian  religion;  or  an 
intended  or  implied  adoption  therein,  to  an  equality,  of  Atheism, 
Paganism,  or  any  kind  of  infidelity  with  the  christian  religion ; 
on  the  contrary',  not  only  in  the  Declaration  of  Independence,  which 
was  the  basis  of  our  fundamentals,  but  in  the  whole  administration 
of  tho  law,  there  is  recognized  an  immortality  of  the  soul,  and  the 
retribution  of  a  conscious  hereafter,  an  all  powerful,  just,  and  holy 

a  Liudcumulkr  v.  The  People,  33  Barb.  573. 
59 


AQG  THE  POLICE  rOWER. 

God  who  will  pimisli  evil  doers  in  tliis  life,  and  in  a  life  to  come, 
with  the  penalties  for  sin.  This  is  also  recognized  by  its  adding 
its  sanction  of  oaths  in  the  administration  of  justice,  and  in  the 
administration  of  goveniniental  affairs.  Such  oaths  assume  the  retri- 
butions of  an  hereafter  by  the  God  of  our  holy  religion,  for  a 
violation  of  the  sacred  obligations  of  them.  In  the  taking  of 
such  oaths  by  one  whose  condition  requires  it,  there  is  placed 
before  him,  and  he  takes  upon  himself,  to  deal  with  the  dread 
reahtics  of  a  future  and  unseen  world ;  it  commits  him  to  an 
acknowledgment  that  God  is,  that  He  sees,  hears  and  knows  the 
secret  thoughts  and  intents  of  his  heart ;  "  and  that  He,  will  by 
no  means  clear  the  guilty." 

In  the  state  of  Ohio,  under  their  constitution,  it  is  denied  that 
the  christian  religion  more  than  any  other,  is  a  part  of  the  common 
law  of  the  state,  though  they  have  a  statute  prohibiting  labor  on 
the  Sabbath  day.  The  courts  hold  this  statute  to  be  a  mere  mu- 
nicipal 01  jMlice  regulation,  a  and  in  Pennsylvania  and  South  Caro- 
lina, their  Sabbath  laws  seem  to  be  sustained  on  the  same  ground,  b 
but,  by  the  courts  in  New  York  all  secular  transactions  are  held  to 
be  -vdolations  of  statute  and  void  as  against  public  policy,  c 

While  therefore,  we  find  that  though  nearly  every'  state  have 
enacted  statutes  against  the  desecration  of,  and  for  the  quiet  ob- 
servance of  what  is  called  the  "  Lords  Day,"  they  do  not  all  agree 
upon  the  basis  of  their  enactment.  Those  states  that  deny  that 
these  laws  were  passed  out  of  respect  to  the  christian  religion,  are 
disposed  to  charge  that  idea  as  puritanical,  or  what  is  more  odious, 
as  the  offspring  of  the  fanatical  persecutions  which  gave  the  holy 
inquisition  such  horrid  force,  "  and  placed  the  civil  and  religious 
liberty,  and  the  lives  of  nations  and  men,  at  the  mercy  of  the  blood- 
iest power  that  ever  inflicted  misery  upon  the  human  race."rf 
Whatever  may  be  the  declared  policy  of  the  states  through  its 
courts,  as  to  these  enactments,  it  can  hardly  be  denied,  that  the 
recognition  by  the  legislatures  of  states  of  one  of  the  essential  fea- 
tures of  our  religion,  to  "  Remember  the  Sabbath  day  to  keep  it 

a  Eloom  v.  Eicbards,  22  Ohio,  387. 

h  Speclitv.  Comnionweulth,  8Barr.  312;  Charleston  v.  Benjamin,  2  Streb.  Law, 
n.  508. 

c  WattH  V.  Van  Ness,  1  Hill,  7G;  Smith  v.  Wilcox,  19  Barb.  581. 
d  Specht  V.  Commonwealth,  Supra,  Penn.  E.  184.8. 


THE   POLICE   rOWER.  467 

holy ;  six  daj'S  slialt  thou  hibor  iiud  do  all  thy  work,  but  the 
seventh  day  is  the  Sabbath  of  the  Lord  thy  God  ;  in  it  thou  shalt 
not  do  any  work ;"  has  had  its  mflucnce  in  seem'ing  the  enactment 
of  such  statutes.  Nor  does  the  poHcy  of  those  states  stop  at  that 
point.  The  existence  of  a  God ;  of  a  hereafter,  and  a  retribu- 
tion,— pervades  the  whole  administration  of  the  law.  These  Sun- 
day law«,  the  state  in  its  administration  of  justice  calling  to  its  aid 
tlie  solemn  sanctions  of  religion  in  the  use  of  oaths,  still  stamps 
this  religion  as  an  integral  part  of  its  policy.  It  is  believed  that 
no  state  would  be  willing  to  see  these  restraints  removed  from  its 
policy.     The  social  fabric  could  not  endure  without  thorn. 

So  too  under  this  power  is  the  construction  of  higliAvays  by  the 
state,  or  by  others  imder  tlieir  authority,  -odth  proper  poUce  provi- 
sions for  their  regulation  and  the  government  of  persons  using  them  ; 
— as  to  the  rate  of  speed  with  which  they  may  be  traveled,  and  which 
way  passengers  meeting  or  passing  each  other  shall  turn  ;  to  prohibit 
uuisances  thereon ;  to  prevent  cattle  and  other  animals  from  run- 
iug  at  large  thereon  ;  to  regulate  the  navigation  and  use  of  pubhc 
waters, — to  prevent  the  sale  of  poisonous  di'ugs, — to  require  dogs 
to  be  muzzled  at  certain  periods, — to  prevent  the  keeping  and 
sale  of  unwholsome  provisions  ;  to  regulate  markets,  and  standards 
of  weights  and  measures ;  to  prohibit  the  keeping,  exhibition,  and 
sale  of  indecent  books  and  pictures,  and  the  universally  acknowl- 
edged power  to  pass  laws  to  pimish  crimes  and  misdemeanors. 

This  enumeration  may  suffice,  though  it  is  but  a  portion  of  the 
instances  in  which  this  pohce  power  may  be  and  has  been  exerted, 
nor  can  it  be  deemed  necessary  to  cite  authority  to  sustain  the 
principle  upon  this  enumeration  of  powers. 


4G8  DUE  TEOCESS  OF  LAW. 


CIIAPTEll  XV. 

OF  COXSTITUTIONAL  PROTECTION  TO  PERSONAL  PROPERTY. 

In  the  three  preceding  cliaj)ters,  we  have  examined,  under  the 
right  of  eminent  domain,  of  the  taxing  power,  and  the  police  power 
of  the  government,  how  the  superior  rights  of  the  government  to 
propert}^  may  be  called  into  exercise,  to  the  deprivation  of  the 
individuals  of  their  private  estates, — and  the  theory,  by  which,  it 
is  supposed,  the  individual  receives  his  compensation.  We  have 
but  incidentally  discussed  the  constitutional  provisions,  state  and 
national,  that  private  i^roperty  shall  not  be  taken  without  due  pro- 
cess of  law.  Our  examination,  in  that  respect,  has  been  Hmited  to 
.such  taking,  and  what  was  regarded  as  due  process  of  law  under 
the  right  of  eminent  domain. 

We  have  already  shown  (in  a  former  chapter)  from  the  provisions 
of  the  various  state  constitutions,  that  the  same  constitutional  intent 
of  protection  is  secured  to  the  citizen  by  language  so  nearly  identical, 
as  not  to  change  the  interpretation,  viz  :  "by  due  process  of  law," 
"  by  due  course  of  law,"  "  by  the  law  of  the  land,"  &c.  So  the 
definitions  in  reported  cases,  though  they  differ  in  phraseology, 
and  are  more  extended  or  limited,  according  to  the  views  of  jurists 
who  have  given  expression  to  them,  do  not  really  effect  any  con- 
flict on  the  question  of  intent. 

It  was  held  in  this  state,  in  the  Supreme  Court,«  "  that  to  work  a 
change  of  property  from  one  private  person  to  another,  by  due  pro- 
cess of  law,  some  proceeding  must  be  had  in  a  court  of  justice  or 
before  magistrates.  At  least  that  the  legislature  should  have  no 
.power  to  deprive  one  of  his  property,  and  transfer  it  to  another, by 
enacting  a  bargain  between  them,  unless  it  be  in  the  hands  of  the 
latter,  as  a  tnist  for  pubhc  use."  The  meaning  of  these  words  was 
equally  well  expressed  by  Mr.  Webster  in  his  argument  before  the 
Supreme  Court  of  the  United  States,^  in  which  he  said :  "  By  the  law 

a  In  tLe  Matter  of  John  and  Cherry  St.,  19  Wend.  G7G-7. 
h  Dartmouth  College  v.  Woodward,  4  Wheat.  581,  582. 


DUE  TEOCESS  OF  LAW.  400 

of  the  land  is  most  clearly  intended  the  general  law;— a  law  Avhich 
hears  before  it  condemns  ;  which  proceeds  upon  inquiry,  and 
renders  judgment  only  after  trial."  The  meanmg  is,  that  every 
citizen  shall  hold  his  life,  liberty,  property  and  immunities  under 
the  protection  of  the  gcnend  rules  which  govern  society.  Every- 
thing Avliich  may  pass  under  a  form  of  enactment,  is  not,  there- 
fore, to  be  considered  the  law  of  the  land.  If  this  were  so,  acts 
of  attainder,  bills  of  pains  and  penalties,  acts  of  confiscation, 
acts  reversing  judgments,  and  acts  directly  transferring  one  man's 
property  to  another,  legislative  judgments,  decrees  and  forfeitures 
in  all  possible  forms,  Avould  be  the  law  of  the  land. 

Such  a  strange  construction,  wcmld  render  constitutional  pro- 
visions of  the  highest  importance  completely  inoperative  and 
void.  It  would  tend  directly  to  establish  the  union  of  all  powers 
in  the  legislature.  There  would  be  no  general  permanent  law  for 
courts  to  administer,  or  for  men  to  live  undin-.  The  administra- 
tion of  justice  would  be  an  empty  form,  an  idle  ceremony.  Judges 
would  sit  to  execute  legislative  judgments  and  decrees  ;  not  to  de- 
clare the  law  or  to  administer  the  justice  of  the  country. 

So  in  the  exposition  of  the  same  words  in  the  national  con- 
stitution, Mr.  Justice  Curtis  said, a  "The  article  is  a  restramt 
on  the  legislative,  as  well  as  on  the  executive,  and  judicial 
powers  of  the  government,  and  cannot  be  so  constiiied  as  to 
leave  congress  fi-ee  to  make  any  process,  '  due  process  of  law,'  by 
its  mere  will."  These  words  are  found  in  Jfarjna  Chnrta,  and  have 
been  copied  into  our  national  and  state. constitutions.  As  in  the 
original  royal  charter,  so  m  om-  oavu,  they  were  intended  to  secure 
the  individual  from  the  arbitrary  exercise  of  the  powers  of  govern- 
ment, unrestrained  by  the  establishment  of  the  principles  of  pri- 
vate rights  and  distributive  justice,  h  This  seems  to  have  settled 
down  to  be  the  good  sense  of  mankind. 

It  has  been  claimed  that  this  power  is  universal,  not  only  in  its 
application,  but  that  the  citizen  under  it  is  entitled  to  claim  a  trial 
by  jury  in  all  cases.  But  the  cases  of  the  right  of  trial  by  jury, 
being  otherwise  expressly  provided  for  in  the  same  constitution,  it 
is  not  to  be  deemed  as  implied  in  this  provision  of  due  process  of  laiv. 

a  Muriixy's  Lessees'v.  Hoboken  Land  Imp.  Co.,  18  How.  270. 
b  Bank  of  Colnmbia  v.  Okely,  i  Wheat.  144. 


470  DUE   TEOCESS   OF  LAW. 

By  the  constitution  of  tlie  United  States,  a  speedy  trial  by  an 
impartial  jury,  is  secui-ed  in  all  criminal  cases,  a  and  by  the  con- 
stitution of  this  state,  the  trial  by  jury  in  all  cases  in  which  it  had 
thcretoforcbeenused,  is  secured  to  remain  inviolate  forever;  but  a 
jury  trial  may  be  waived  by  the  parties  in  all  civil  cases,  in  the 
manner  to  be  prescribed  by  law.  h 

But  there  are  exceptions  to  the  general  rule  laid  down  in  the 
cases  we  have  referred  to,  that  to  pass  title  to  property  from  one 
person  to  another,  there  must  be  the  intervention  of  judicial  pro- 
ceedings so  called.  The  cases  of  the  taxing  and  police  power,  and 
perhaps  the  right  of  eminent  domain,  may  be  regarded  as  excep- 
tions, and  perhaps  there  are  many  other  special  cases.  The 
general  rule  to  which  we  have  referred,  and  its  general  necessity, 
as  a  rule,  does  not  preclude  the  legislature  from  establishing 
special  rules,  for  a  special  or  particular  class  of  cases,  which  range 
themselves  under  some  general  and  acknowledged  head  of  legisla- 
tive power,  nor  does  the  requirement  of  what  is  technically  so  called 
judicial  action  demand,  in  every  case,  a  hearing  in  court,  c 

These  cases,  which  are  exceptions  to  the  general  rule,  are,  and 
should  be  looked  upon  with  great  jealousy  by  the  courts,  for  fear 
of  establishing  a  precedent  that  should  look  like  encroaching  upon 
constitutional  securities.  They  generally  relate  to  legislation  as 
to  interests  or  property  to  be  acquired  in  future,  and  seldom  or 
never  as  to  existing  interests.  Sometimes  they  relate  to  the  forms 
of  administering  justice  by  courts,  or  by  officers  specially  appointed 
by  statute  to  perform  certain  duties ;  powers  which  are  incident 
to  the  exercise  of  this  branch  of  the  sovereign  will,  and  which 
must  ever  be  subject  to  the  legislative  w'ill. 

The  line  which  distinguishes  what  are  called  the  excepted  cases 
from  others,  is  so  nice,  and  is  so  bordering  upon  those  that  are 
brought  under  the  heads  of  right  of  eminent  domain,  the  taxing 
and  police  powers,  or  under  the  acknowledged  legislative  power 
to  change  the  form  of  remedies,  that  the  ablest  jurists,  have  been 
disposed  to  doubt  the  existence  of  even  an  exception  at  all,  d 
For  instance,  a  statute  making  it  unlawful  to  sell  intoxicating 

a  Art.  G.  h  kxi.  1.  §  2. 

c  Cooley  on  Const .  Lim.  355. 

d  Wynchamer  v.  The  People,  Per.  Comstock,  J.  13  N.  Y.  E.  386-387. 


OF  STATUTE   REMEDIES.  471 

liquors  or  to  keep  tlicm  for  sale,  decltiriiif^  tlicm  a  nuisance,  and 
authorizing  public  officers  to  abate  the  nuisance  by  its  destraction, 
has  been  held  to  be  unconstitutional  as  applicable  to  such  liquors  as 
were  owned  or  kept  at  the  time  of  the  passage  of  the  law.  But  it 
was  intimated,  a  that  it  was  competent  for  the  legislature  to  pass 
an  act  containing  like  provisions  to  annihilate  and  destroy  such 
property  that  might  be  acquired  or  created  at  any  time  after  the 
passage  of  such  an  act.  This,  it  is  said,  would  1)0  however,  by 
virtue  of  the  police  power. 

So  too,  the  taking  of  wild  lands  of  an  inchvidual  for  a  public 
highway  by  the  state,  and  by  commissioners  appointed  by  an  act 
of  the  legislature,  without  giving  compensation  to  the  proprietor, 
has  been  held  to  be  within  the  constitutional  power  of  the  legisla- 
ture. But  this  is  said,  also,  to  come  under  the  taxing  power,  and 
based  upon  the  principle,  that  the  owner  receives  an  equivalent 
by  the  increased  value  of  the  adjoining  lands. 

"  Nevertheless,  in  many  cases  and  ways,  remedial  legislation 
may  affect  and  control  the  disposition  of  property,  and,  in  some 
cases,  may  change  rights,  give  remedies,  where  none  existed  before, 
and  even  devest  titles,  in  case  the  legal  and  equitable  rights  do  not 
concur  in  the  same  person."?)  But  it  is  believed  that  no  reason 
of  public  policy  will  be  sufficient  to  effect  such  changes  or  trans- 
fers of  property  where  they  operate  on  vested  rights,  c 

It  cannot  be  denied,  that  the  legislature  have  power  to  pass  an  act, 
which,  without  acting  directly  upon  its  terms,  destroj^s  the  remed}' 
which  a  party  may  have  at  the  time  of  its  passage,  or  so  embar- 
rasses it,  that  the  rights  of  the  creditor  under  such  legal  remedies 
are  substantiall}'  defeated.  (Z  It  may  frequently  be  difficult  to 
draw  the  line,  between  acts  affecting  the  remedy  only,  and  those 
that  are  within  the  legitimate  province  of  the  state  legislature,  antl 
such,  as  overstepping  those  bounds,  substantially  impair  th-j 
obhgation  of  antecedent  contracts  ;  and  it  is  perhaps  impracticable 
to  lay  down  in  language,  a  rule  by  which  all  such  questions  may 
be  tried  and  determined. 

But  it  is  well  estabhshed  law,  that  the  indi\idual  citizen  with 

aid.  459. 

h  Cooley  on  Const.  Limits,  3o7.  c  Id. 

d  Morse  v.  Gould,  11  N.  Y.  287-291. 


472  or  STATUTE  EEMEDIES. 

all  liis  riglits  to  protection,  has  no  vested  right  in  what  is  known 
in  the  law  as,  remedies,  nor  in  any  particular  existing  remedy. 
He  has  no  such  vested  interest  in  the  existing  laws  of  the  state, 
as  precludes  their  amendment  or  repeal  by  the  legislature ;  nor  is 
there  any  implied  obhgation  on  the  part  of  the  state — to  protect 
its  citizens  against  incidental  injury  occasioned  by  changes  in  the 
law.  Whatever  belongs  merely  to  the  remedy,  may  be  altered 
according  to  the  will  of  the  state,  alwa3%s  provided,  the  alteration 
does  not  impau'  the  obligation  of  the  contract ;  but  if  a  statute  so 
clianges  the  nature  and  extent  of  an  existing  remedy  as  materially 
to  impair  the  rights  and  interests  of  the  owner  of  property,  it  is 
just  as  much  a  violation  of  the  constitutional  provision,  as  if  it 
directly  overturned  his  rights  and  interests,  a  If  the  remedy  does 
not  impair  the  right  or  property  itself,  if  it  still  leaves  the  party  a 
substantial  remedy  according  to  the  course  of  justice,  as  the  right 
existed  at  the  time  of  the  passage  of  the  statute,  it  does  not  impair 
the  obligation  of  the  contract,  h  nor  will  it  be  held  to  do  so,  merely 
because  the  new  remedy  is  less  efficient,  less  speedy,  or  less  con- 
venient than  the  old  one.  c 

Among  the  class  of  statutes  which  have  been  held  not  to  have 
impaired  the  contract,  is  that  of  the  abolition  of  imprisonment  for 
debt  in  this  state,  upon  existing  contracts.  The  poAver  of  confine- 
ment of  the  debtor,  as  a  means  of  inducing  him  to  perform,  and 
punishment  for  nonperformance,  was  an  efficient  power,  but  the 
courts  have  held  that  imprisonmnent  was  no  part  of  the  contract ; 
and  to  release  the  debtor  from  the  liability  to  imprisonment  did 
not  impair  the  obligation.  <{  A  good  remedy  is  still  left,  and  the 
contract  still  remains  in  full  force.  So  another  statute  of  tbis 
state  abolishing  the  right  of  distress  for  rent  in  arrear.  Though 
this  statute  took  away  a  part  of  the  remedy  existing  at  the  time  of 
making  the  leases,  it  was  held  to  be  no  violation  of  this  constitu- 
tional provision ;  and  an  express  stipulation  between  the  parties 
contained  in  the  lease,  that  the  lessor  should  have  this  remedy, 
did  not  prevent  the  legislature  from  abolishing  it,  because  this  w^as 

a  Branson  v.  Kinzie,  1  How,  U.  S.  E.  31G;  Green  v.  Biddle,  8  "Wheat,  75-70 
b  Story  V.  Furman,  25  N.  Y.  233;  Van  itcnssclaer  v.  Snyder,  12  N.  Y.  299-305 
c  Morse  v.  Gould,  UN.  Y.  281. 
d  Sturges  v.  Crowninshield,  4  Wheat.  2C0,  201 . 


CF  STATUTE   KEJrEDIES.  473 

a  subject  concerning  AvLicli,  it  was  not  competent  for  tlio  parties 
to  contract  in  such  a  manner  as  to  proliibit  the  exercise  of  legis- 
lative powers,  a     The  court  said,  "  this  act  provided  a  new  remedy 
in  the  cases  wlioro  the  right  of  re-entry  was  reserved  to  enforce 
the  collection  of  the  debt  due  the  landlord.     This  was  an  ordinary 
and  proper  exercise  of  legislative  iK)W(,>r,  unless  individuals  by 
contract  can  ])('rpotuate  a  legal  remedy  in  spite  of  the  legislature, 
which  is  aljsurd."     And  in  another  case,  they  said,  "If  this  is  a 
subject  on  wliich  parties  can  contract,  and  if  their  contracts  when 
made,  become,  by  virtue  of  the  constitution  of  the  United  States, 
superior  to  the  power  of  the  legislature,  then  it  follows,  that  what- 
ever at  any  time  exists,  as  part  of  the  machinery  for  the  adminis- 
tration of  justice,  may  be  perpetrated,  if  the  parties  choose  so  to 
agree.     That  this  can  scarcely  have  been  within  the  contemplation 
of  the  makers  of  the  constitution,  and  that  if  it  prevail  as  law,  it 
will  give  rise  to  grave  inconveniences,  is  quite  obvious.     Every  such 
stipulation  is  in  its  own  nature  conditional  upon  the  lawful  con- 
tinuance of  the  process.     The  state  is  no  party  to  the  contract. 
It  is  bound  to  afford  adequate  process  for  the  enforcement  of 
rights ;  but  it  has  not  tied  its  own  hands  as  to  the  modes  by  which 
it  will  administer  justice.     Those,  from  necessity,  belong  to  the 
supreme  power  to  prescribe,  and  their  continuance,  is  not  the  sub- 
ject of  contract  between  private  parties." 

So  too,  a  statute  of  this  state,  which  exempts  a  portion  of  a 
debtors  property  from  liability  to  execution  for  debts,  even  existing 
debts,  and  further  acts  modifiing  and  increasing  such  exemptions, 
are  not%'iolationsofthe  constitution,  although  they  seem  to  dimin- 
ish the  security  of  the  creditor.  Chief  Justice  Taney  in  relation 
to  that  class  of  cases,  said,  h  "  Undoubtedly,  a  state  may  regulate  at 
pleasure  the  modes  of  proceeding  in  its  courts  in  relation  to  past 
contracts  as  well  as  future.  It  may  for  example,  shoi-ten  the  period 
of  time  within  which  claims  shall  be  barred  by  the  statute  of  limi- 
tations. It  may,  if  it  thinlcs  proper,  direct  that  the  neccssarv 
implements  of  ngriculture,  or  the  tools  of  the  mechanic,  or  articles 
of  necessity  in  household  furniture,  shall,  like  wearing  apparel, 
not  be  liable  to   execution   or  judgments.     Regulations  of  this 

a  Van  Eensselaer  v.  Suyder,  13  X.  Y.  209;  Coukey  v.  Hart,  14  N.  Y.  '22. 
6  Bronson  v.  Kenzie,  1  Hotc.  315. 
60 


47-i  OF   STATUTE  EEMEDIES. 

description  have  ahvavs  been  considered,  in  every  civilized  com- 
munity,  as  properly  belonging  to  tlie  remedy,  to  be  exercised 
or  not  by  every  sovereignty,  according  to  its  own  views  of  policy 
and  liumanity.  It  must  reside  in  every  state,  to  enable  it  to 
secure  its  citizens  from  unjust  and  han-assing  litigation,  and  to 
protect  them  in  those  pursuits  which  are  necessary  to  the  existence 
and  well  being  of  every  community." 

There  is  no  doubt,  however,  that  a  statute  which  should  deprive 
a  party  of  all  legal  remedy,  would  necessarily  be  void.  The 
legislature  by  such  statute,  intending  it  to  have  effect  upon  legal 
contracts  lawfully-  made  and  bindiug  upon  the  parties,  would 
exceed  their  legitimate  powers.  Such  an  act  must  necessarily 
impair  the  obligation  of  the  contract  within  the  meanmg  of  the 
constitution.  This  has  been  adjudged. a  "And  where  a  statute 
does  not  leave  a  party  a  substantial  remedy  according  to  the  course 
of  justice,  as  it  existed  at  the  time  the  contract  was  made,  but 
shows  upon  its  face  an  intention  to  clog,  hamper  or  embarrass  the 
l^rocaedings  to  enforce  the  remedy,  so  as  to  destroy  it  entirely, 
and  thus  impair  the  contract,  so  far  as  it  is  in  the  power  of  the 
legislature  to  do  it,  such  statute  cannot  be  regarded  as  a  regulation 
of  the  remedy,  and  is  void."  h  But  a  lawful  repeal  of  a  statute 
cannot  constitutionally  be  made  to  destroy  contracts  made  under  it. 

"We  have  intended  to  dwell  no  longer  upon  this  branch  of  the 
law,  than  was  necessaiy  to  lay  down  the  principles  which  govern 
it,  and  cite  to  the  support  of  such  principles,  undoubted  authority 
of  the  courts.  As  we  do  not  intend  this  to  be  a  work  of  practice, 
we  shall  not  extend  the  reference  to  the  multitude  of  cases  which 
illustrate  the  principles  stated. 

The  question  as  to  the  effect  of  a  state  to  pass  insolvent  or 
bankrupt  laws,  and  the  classes  of  cases  to  which  they  extend,  or 
can  be  made  to  apply,  may  be  considered  under  this  head.  The 
fourth  subdivision  of  section  eight  article  first  of  the  constitution 
of  the  United  States  provides,  "  that  congi^ess  shall  have  power 
to  establish  laws  on  the  subject  of  bankruptcies  throughout  the 
United  States."  This,  it  has  been  supposed,  amounted  to  an 
exclusion  of  the  state  legislatures,  to  enact  insolvent  or  bankrupt 

a  Call  V.  Hagger,  8  Mass.  429. 

b  Cooley  on  Lim.  289;  Oatman  v.  Bond,  15  Wis.  28. 


or  B.\MvHurT  LAWS.  475 

laws,  and  for  a  time,  legal  controversies  were  frequent  wliich 
involved  the  constitutional  effect,  and  operation  of  state  insolvent 
laws.  More  recently,  the  subject  has  received  the  consideration 
of  the  federal  courts,  and  certain  propositions  relating  to  that  ques- 
tion may  be  regarded  as  having  been  finally  settled.  The  unques- 
tioned conclusions  of  that  tribunal  may  be  stated  as  follows : 
That  there  are  only  three  cases,  in  which  the  states  are  excluded 
from  the  exercise  of  any  power  antecedently  possessed  by  them. 

1.  When   a  power  is  gi'anted  to   congress  in  exclusive  terms. 

2.  When  the  states  are  expressly  prohibited  from  exercising  it  in 
a  specific  form.  3.  When  a  power  is  gi-anted  to  congi-ess,  the 
cotemporaneous  exercise  of  Avhich  by  the  states  would  be. incom- 
patible, a 

It  had  been  previously  established,  that  any  state  in  the  union 
has  a  right  to  pass  a  l)ankrupt  law,  provided  such  law  does  not 
impair  the  obligation  of  the  contracts,  and,  provided  there  be  no 
act  of  congress  in  force  to  establish  a  uniform  system  of  bank- 
ruptcy conflicting  with  such  law.  That  although  some  of  the 
powers  of  congi-ess  are  exclusive,  from  their  nature,  without  any 
express  prohibition  of  the  exercise  of  the  same  powers  by  the 
states,  the  power  of  estabhshing  bankniptcy  laws  is  not  of  this 
description,  h 

More  recently  it  was  held,  1.  That  the  power  given  to  the 
United  States  to  pass  bankruptcy  laws  is  not  exclusive.  2.  That 
the  fair  and  ordinary  exercise  of  that  power  by  the  states,  does 
not  necessarily  involve  a  violation  of  the  obligation  of  contracts, 
onulto  fortiori,  of  posterior  contracts,  c  And  still  more  recently  it 
was  repeated,  that  a  bankrupt  or  insolvent  law  of  any  state,  which 
discharges  both  the  person  of  the  debtor  and  his  future  acquisitions 
of  property,  was  not  a  law  impairing  the  obligation  of  contracts  so 
far  as  respects  debts  contracted  subsequent  to  the  passage  of  such 
law.  But,  it  was  further  settled  in  the  same  case,  that  when  in 
the  exercise  of  that  power,  the  states  pass  beyond  their  owti  limits, 
and  the  rights  of  their  own  citizens,  and  act  upon  the  rights  of 
citizens  of  other  states,  there  arises  a  conflict  of  sovereign  power, 
and  a  collision  with  the  judicial  powers  granted  to  the  United 

a  Ogcleu  V.  Sanders,  12 "Wheat.  229 

h  Shirgis  v.  CrowTiinshield,  4  "Wheat.  192.  cCook  v.  Moffat,  5  How.  310. 


476  OF  BANKRUrT  LAWS. 

States,  Avliicli  renders  the  exercise  of  such  a  power  mcompatible 
with  the  rights  of  other  states,  and  with  the  constitution  of  the 
United  States,  a  so  that,  insolvent  laws  of  our  state,  cannot  dis- 
charge the  contracts  of  citizens  of  other  states,  because  they  have 
no  extra  temtorial  operation,  and  consequently  the  tribunal  sit- 
ting mider  them,  unless  in  cases  where  a  citizen  of  such  other  state 
becomes  a  party  to  the  proceeding,  has  no  jurisdiction  in  the  case. 

But  though  the  constitution  of  the  United  States  does  not, 
in  terms,  grant  to  the  states  the  power  of  passing  bankrupt  laws, 
nor  prohibit  them,  they  may,  in  the  absence  of  a  law  of  congress, 
lawfully  pass  such  acts.  So  too,  it  is  held,  that  congress,  finding 
a  state  in  possession  of  such  an  act,  may  by  an  act  of  their  own, 
prohibit  its  future  exercise  entirely,  or  restrain  it,  so  far,  as 
national  policy  may  requh^e.  The  constitution  itself  has  restrained 
it,  so  far,  as  to  prohibit  the  passage  of  any  law  impairing  the  oblig- 
ation of  contracts.  And  though  they  may,  until  the  power  of  con- 
gTess  shall  be  exercised,  so  to  prohibit  or  restrain  the  state  law,  to 
pass  laws  concerning  bankrupts,  yet  they  cannot,  constitutionally 
introduce  into  such  laws,  a  clause  which  discharges  the  obligations 
the  bankrupt  has  already  entered  into,  h 

The  case  in  which  this  was  held,  was  the  constniction  of  the 
terms  of  an  act  of  the  legislature  of  the  state  of  New  York  enti- 
tled, "  An  act  for  the  benefit  of  insolvent  debtors  and  their  credi- 
tors," passed  in  April,  1811,  which  contained  a  provision  discharg- 
ing the  debtor  from  all  liability  upon  debts  contracted  previous 
to  his  discharge,  and  including  such  as  were  contracted  previous 
to  the  passage  of  the  act,  upon  his  surrendering  his  property 
in  the  manner  prescribed  by  the  act.  The  defendant  had  ob- 
tained a  discharge  under  this  act,  and  was  sued  upon  obligations 
made  before,  though  payable  after  the  taking  effect  of  the  act. 
He  set  up  this  discharge,  as  a  defence  to  the  suit  upon  the  notes. 
The  case  received  great  consideration,  and  Chief  Justice  Marshall, 
expressing  the  opinion  of  the  court,  held  the  New  York  statute,  so 
far  as  it  attempted  to  discharge  contracts  made  prior  to  the  taking 
effect  of  the  act,  to  be  unconstitutional,  because,  impairing  thf 
obhgation  of  contracts. 

a  Baldwin  v.  Hale,  1  Black.  231 . 

I  Sturgis  V.  Crowninshield,  4  Wheat.  199. 


IMTAIRING    OLLIGATION   OF  CONTRACTS.  477 

It  cannot  be  doubted,  that  the  true  meaning  of  this  ckiuse  in 
the  constitution  is,  that  the  body  upon  ^vhich  the  prohibition 
rests,  and  which  is  restrained  thereby,  is  the  legiskitive  depart- 
ment. The  subject,  upon  which  tlie  prohibition  takes  efiect,  is 
contracts.  In  this  is  included  every  contract  rckiting  to  property, 
or  some  object  of  vakie,  Avhich  confers  rights,  and  wliich  may  be 
asserted  in  a  court  of  justice.  It  is  imniiiteriul  whether  the  con- 
tract be  between  a  state  and  an  individual,  or  between  individuals 
only.  The  contracting  parties  whoever  they  may  be,  stand  in  this 
respect  upon  the  same  ground.  The  obligations  imposed,  and  the 
rights  acquired  by  virtue  of  the  contract,  cannot  be  impaired  by 
a  legislative  act.  x\.  law  which  discharges  these  obligations,  or 
abrogates  these  rights,  impairs  them. 

A  constitutional  act  of  legislation,  which  is  equivalent  to  a  con- 
tracti  and  is  perfected,  requiring  notliing  further  to  be  done  in 
order  to  its  entu-e  completion  and  perfection,  is  a  contract  executed. 
Whatever  rights  are  thereby  created,  a  subsequent  legislature  can- 
not impair.  Nor  can  an  obligation  created  by  a  constitutional 
law  which  is  in  the  nature  of  an  executory  contract,  and  which  is 
supported  by  a  sufficient  consideration,  be  annulled  at  the  pleasure 
of  the  legislature.  But  a  statute,  though  passed  by  a  legislature 
having- constitutional  authority  to  enact  it,  which  implies  a  con- 
tract executory  depending  upon  the  further  action  of  the  legisla- 
ture or  its  agents  for  its  execution,  and  which  is  without  consid- 
eration in  fact  or  in  law,  may,  before  its  execution,  and  the  exist- 
ence of  any  consideration,  be  repealed.  Such  a  contract  does 
not  create  rights  or  duties,  which,  in  legal  contemplation,  can  be 
impaired.  Such  has  been  adjudged  to  be  the  tnie  meaning  of  this 
clause  of  the  constitution,  a 

It  is  obvious  therefore,  that  in  every  case,  where  the  prohibi- 
tion is  attempted  to  be  applied,  the  first  inquiry  is,  whether  the 
case  be  one  in  which  the  subject  matter  is  a  contract  relating  to 
property,  or  some  object  of  value,  and  which  imposes  an  obhgation 
capable,  in  legal  contemplation,  of  being  impaired  ?  If  it  be  such 
a  contract,  the  remaining  inquiry  is,  whether  the  act  of  the  legis- 
lature impairs  that  obligation  ?  Hence  it  is  a  proper  subject  of 

a  People  v.  Tlatt,  17  John  214,  215;  Dartmouth  College  v.  "Wooilwanl,  -t 
Wheat.  518;  Sturges  v.  CrowuiDshiohl,  4  Wheat.  201. 


478  DdlEDsG  OBLIGATION  OF  CONTRACTS. 

examination  whether  the  contract  be  executed,  or  only  executory. 
If  the  hitter,  whether  it  be  upon  sufficient  consideration,  proved, 
or  presumed,  if  it  be  an  act  of  the  legisLiture  which  constitutes 
the  contract,  it  is  executed.  Has  the  object  of  the  contract  been 
performed  ?  or,  is  it  a  mere  executory  contract  requiiing  the 
fiu-ther  action  of  the  legislature,  or  its  agents,  to  complete  its 
execution?  And  if  the  latter,  is  it  voluntary,  or  upon  sufficient 
consideration  ?  If  the  contract  be  one  which  the  legislature  has 
the  constitutional  power  to  make,  and  it  be  executed,  and  no 
further  act  remains  to  be  done,  by  the  state  or  its  agents,  as  if  a 
grant  of  money  be  made,  and  the  money  be  delivered,  or  if  it  be 
a  grant  of  land,  and  the  legislative  act  is,  itself,  the  conveyance, 
not  rec[uiring  the  execution  and  delivery  of  a  deed  or  other  instru- 
ment, nor  any  other  to  be  done  to  complete  it,  the  contract  has 
passed  to  the  form  of  a  grant ;  it  has  become  a  contract  executed ; 
and  the  law  in  which  it  originates,  cannot  be  repealed.  But  if 
the  contract  be  executory,  as  if  it  be  a  gift  of  money  or  land  un- 
executed, requiring  some  further  act  to  its  completion,  as  the 
delivery  of  the  money,  or  the  execution  of  an  instrument  of  con- 
veyance, and  is  without  consideration  in  fact,  or  to  be  presumed, 
then,  before  its  completion,  and  the  existence  of  any  consideration, 
it  may  be  repudiated ;  the  gift  may  be  withheld,  and  the  paiiy 
who  made  the  promise  may  revoke  it.  In  this  respect,  the  state 
and  an  individual  are  subject  to  the  same  rule,  a 

Another  distinction  is  found  in  the  particular  character  of  the 
property,  between  that  which  may  be  affected  by  legislative  action, 
and  that  wliich  may  not,  and  more  especially  between  such  stat- 
utes as  are  of  a  retrospective  character,  and  such  as  are  called  reme- 
dial and  prospective.  It  is  hardly  questioned,  that  a  retrospective 
statute  which  affects  and  changes  vested  rights,  is  founded  upon  un- 
constitutional principles,  and  is  consequently  inoperative  and  void.6 

Judge  Cooley,  in  his  valuable  work  on  constitutional  limitations 
has  well  said,  "  Every  man  holds  all  he  possesses,  and  looks  for- 
ward to,  all  he  hopes  for,  through  the  aid  and  protection  of  the 

a  Smith's,  com.  384.     The  Derby  Turnpike  Co.  v.   Parks,  10  Conn,    540,   541. 

Atwator  V.  Woodbridge,  6  Conn.  230.     Osborne  v.  Humphrey,    7  Id.,    340,   341. 

State  of  New  Jersey  v.  Wilson,  7  Cranch.  105.     Fletcher  v.  Teck,    G  Cranch.  136 

to  138. 

h  1      Kent.  Com.  455. 


coxsTrruTioN.u.  tkotection.  479 

laws  ;  but  as  changes  of  circumstances,  and  of  public  opinion, 
as  well  as  other  reasons  of  public  policy,  are  all  the  time  calling 
for  changes  in  the  laws,  and  these  changes  must  more  or  less  aflfect 
the  value  and  stability  of  private  possessions,  and  strengthen  or 
destroy  well  founded  hopes;  and,  as  the  power  to  make  very 
many  of  them  must  be  conceded,  it  is  apparent  that  many  rights, 
privileges  and  exemptions,  which  usually  pertain  to  ownership 
under  a  particular  state  of  the  lav\',  and  many  reasonable  expec- 
tations, cannot  be  regarded  as  vested  rights,  in  any  legal  sense. 
In  many  cases,  the  courts,  in  the  exercise  of  their  ordinary  jurisdic- 
tion, cause  the  property  vested  in  one  person  to  be  transfeiTcd  to 
another,  either  through  a  statutory  power,  or  by  the  force  of  their 
judgments,  or  decrees,  or  by  compulsory  conveyances.  If  in 
these  cases  the  court  has  jurisdiction,  they  proceed  in  accordance 
with  the  law  of  the  land,  and  the  right  of  one  man  is  divested  by 
way  of  enforcing  a  higher  and  better  right  in  another."  « 

But  the  question,  what  constitutes  duejjroeessqfJau;  can  be, 
and  frequently  is  raised  in  the  courts  and  in  judicial  proceed- 
dmgs,  as  frequently  as  elsewhere,  and  the  final  decision  of  the 
court,  when  jurisdiction  is  had  of  the  subject  and  the  person,  is 
conclusive  in  that  particular  case.  It  is  the  conflict  of  adjudica- 
tions in  the  courts  on  this  question,  and  upon  words  of  nearly 
similar  import,  that  has  seemed  to  create  conflict  of  opinion,  as  to 
the  true  intcipretation  of  these  words. 

This  constitutional  security  to  the  citizen,  that  his  property  can- 
not be  taken  but  by  due  process  of  law,  or,  by  the  law  of  the  land, 
extends  even  to  actions  at  law  in  the  com'ts.  He  cannot  even  be 
deprived  of  it  by  coui'ts,  except  they  obtain  jiuisdiction  of  the 
subject,  and  of  the  person  of  the  proprietor.  An  adjudication  by 
a  coui-t,  where  juiisdiction  is  not  obtained,  is  void  as  to  property 
which  its  judgments  assume  to  affect,  and  its  owner  may  repudiate 
their  action,  defy  their  powers,  and  avail  himself  of  his  objection 
at  any  stage  of  their  proceedings  under  the  judgment,  or  decree, 
us  well  collaterally  as  othei"s\'ise.  In  such  case  the  proceeding  is 
not  by  due  process  of  law,  nor  by  the  law  of  the  loud,  and  all  pei-- 
sons  interfering  with  individual  property  under  sucli  assumed 
authority  render  themselves  liable  as  trespassfirs. 

a  Cooley  on  Const.  Liui.  i358. 


480  CONSTITT?TION.\L  TROTECTION. 

The  question  of  jurisdiction  of  parties  and  property,  is  some- 
times determined  by  the  common  la^Y,  and  sometimes  by  a  statute 
constitutionally  enacted.  Such  statutes  affect  only  the  remedy 
and  form  of  proceeding;  but  it  must  be  admitted,  that  the  method 
of  acquiring  jurisdiction,  often  seriously  affects  or  impairs  the 
value  of  this  constitutional  protection,  and  the  question  of  juris- 
diction is  sometimes  one  of  law,  and  sometimes  of  fact. 

By  the  statute  of  this  state  a  jurisdiction  over  the  person  and 
property  of  a  party  may  be  obtained  without  actual  personal  ser- 
vice upon  him  of  the  process  or  proceeding  by  which  an  action 
may  be  commenced  against  him  in  the  courts,  by  which,  proceed- 
ings to  judgment  may  be  had,  and  his  property  taken  under  its 
Judgments  ;  and  similar  statutes  are  found  in  most  of  the  other 
states. 

In  tliis  state  such  jurisdiction  may  be  obtained,  when  the  party 
cannot,  after  due  diligence,  be  fomid  within  the  state ;  in  a  class 
of  cases  enumerated,  to  wit,  when  a  cause  of  action  exists  against 
him,  or,  when  he  is  a  proper  party  to  an  action  relating  to  real 
property  in  the  state.  Then,  by  an  order  duly  obtained  according 
to  the  directions  of  the  same  statute,  a  judge  of  the  court  may 
direct  the  service  of  the  process  by  a  publication  of  it,  in  specified 
pubhc  newspapers,  for  a  required  period,  in  the  following  cases  : 
1.  Where  the  defendant  is  a  foreign  corporation,  has  property 
Avithin  the  state,  and  the  cause  of  action  arose  therein.  2.  Where 
the  defendant,  being  a  resident  of  this  state,  has  departed  therefrom 
with  the  intent  to  defi-aud  his  creditors,  or  to  avoid  the  service  of 
a  summons,  or  keeps  himself  concealed  therein  with  like  intent. 

3.  Where  he  is  not  a  resident  of  this  state,  but  has  property  therein, 
and   the   court  has  jurisdiction   of    the   subject   of  the   action. 

4.  Where  the  subject  of  the  action  is  real  or  personal  property 
in  this  state,  and  the  defendant  has,  or  clains  a  lien,  or  interest, 
actual  or  contingent  therein,  or  the  relief  demanded  consists  wholly, 
or  partly,  in  excluding  the  defendant  from  any  interest  or  lien 
therein.  5.  Where  the  action  is  for  divorce,  in  the  cases  prescribed 
Ijy  law. 

The  right  of  the  legislature  to  prescribe  such  substituted  notice 
by  publication,  and  to  give  to  it  the  effect  of  personal  seiTice  of 

a  Code,  §  135. 


CONSTITUTION.UL,  TKOTECTIO?'.  x/  i 

process  in  the  euumcrated  class  of  cases,  is  Wi^l'/ .  tix  legirsiative 
power.  They  may  thus,  by  a  remedial  and  euabliflg  statute,  pro- 
vide a  substituted  method  of  service,  basing  it  upon  the  necessity 
of  the  case.  This  i)Ower  has  long  been  acted  upon,  and  recognized 
as  beuig  authorized  and  justitied  l)y  the  courts,  and,  as  being  due 
process  of  law.  (t  Common  justice  requu-es  that  a  party  in  cases 
provided  for  in  the  New  York  statute,  should  have  some  mode  of 
giving  notice  to  his  adversary.  It  cannot  be  admitted,  that  a  party 
may  defeat  the  ends  of  justice  as  against  himself,  by  so  removing 
himself  from  the  power  to  make  personal  service,  that  not  even 
the  legislative  power  is  sufficient  to  provide  the  means  of  reaching 
his  property.  The  practice  of  service  by  publication,  is  free  from 
reasonable  objection  under  the  protection  of  the  courts,  and  has 
long  been  held  sufficient.  !> 

Under  jurisdiction  thus  acquned,  there  is  no  doubt,  the  private 
property  of  one  person  may,  through  the  instrumentality  of  the 
court,  and  by  its  judgment  or  decree,  be  transfen-ed  to  another, 
and  this  will  be  held  to  be  due  process  of  law. 

No  subject,  on  the  question  of  jurisdiction,  obtained  under  such 
statutes,  has  been  more  prolific  of  litigation,  than  that  relating  to 
cases  of  divorce  fi'om  the  bonds  of  matrimony;  raising  the  ques- 
tion of  fact,  whether  the  party  applying  to  have  the  process  of 
the  court  issued  under  such  a  statute,  and  served  only  by  pubh- 
cation,  is,  himself  or  herself,  a  honafide  resident  -within  the  state 
in  which  such  process  is  issued.  This  question  being  one  of  juris- 
diction, is  always  open  to  the  party  affected  thereby,  even  in  a  col- 
latteral  action,  to  dispute  it.  So  that  if  a  party  goes  to  a  juris- 
diction other  than  that  of  his  domicile,  for  the  purpose  of  procur- 
ing a  divorce,  and  has  residence  there  for  that  purpose  only,  such 
residence  is  not  honajide,  and  does  not  confer  upon  the  courts  of 
that  state  or  country,  jurisdiction  over  the  marriage  relation,  and 
any  decree  they  may  assume  to  make,  would  be  void  as  to  the 
other  party.  ^ 

a  Matter  of  Empire  City  Bank,  18  X.  Y.  200-215;  Rockwell  v.  Xearing,  33  X.  Y 

314. 
b  Nations  v.  Johnson,  21  How.  U.  S.  E.  20G. 

XoTE  1. — A  valuable  note  is  fouud  in  the  work   of   Judge  Cooley  on  constitu- 
tional limitations,  page  iOl,  which  contains   a   reference  to  the  adjudications   of 
varioiis  states,  iipou  the  effect  of  tho  service  of  process  in  the  commencement  of 
61 


482  CONSTITUTIONAL  TROTECTION. 

Tliis  rule  of  law,  that  jurisdiction  may  be  tlms  obtained  of  a 
party  -without  personal  service  of  process,  is  not  in  conflict  with 
the  principle,  that  a  statute  which  should  authorize  any  debt  or 
damages  to  be  adjudged  against  a  person  upon  a  purely  ex  jxtrie 

actions  ol  divorce,  by  publication  and  otlierwisc,  wliere  tbe  question  of  bona  fide 
residence  has  been  considered  by  the  courts.  "  These  questions,"  he  says  in  his 
■work,  "  have  frequently  demanded  the  thoughtful  attention  of  the  courts,  who 
have  sought  to  establish  a  rule,  at  once,  sound  in  principle,  and  that  shall  pro- 
tect as  far  as  possible,  the  rights  of  the  parties,  one  or  the  other  of  -whom,  unfor- 
tunately, under  the  operation  of  any  rule  which  can  be  established,  it  will  fre- 
quently be  found,  has  been  the  victim  of  gross  injustice."  In  the  case  of  the 
"inhabitants  of  Hanover  v.  Turner,  Id  Mass.  227,"  instructions  to  a  jury  were 
sustained,  that  if  they  were  satisfied,  the  husband,  who  had  been  a  citizen  of 
Massachusetts,  removed  to  Vermont  merely  for  the  purpose  of  procuring  a 
divorce,  and  that  the  pretended  cause  for  divorce,  arose,  if  ever  it  did  arise,  in 
Massachusetts,  and  that  the  wife  was  never  within  the  jurisdiction  of  the  court 
of  Vermont,  then,  and  in  such  case,  the  decree  of  divorce  which  the  husband 
had  obtained  in  Vermont,  must  be  considered  8S  fraudulently  obtained, 
and  that  it  could  not  so  operate  as  to  dissolve  the  marriage  between  the 
parties.  See  also  Vischer  v.  "Vischer,  12  Barb.  G-IO,  and  McGiffert  v. 
McGiflfert,  31  Barb.  G9.  In  Chase  v.  Chase,  G  Gray,  the  same  ruling  was  had 
to  a  foreign  divorce,  notwithstanding  the  wife  appeared  in,  and  defended  the 
foreign  suit.  In  Clark  v.  Clark,  8  N.  H.  E.  21,  the  court  refused  a  divorce  on  the 
ground  that  the  alleged  cause  of  divorce,  (adultery,)  though  committed  within 
the  state,  was  so  committed  while  the  parties  had  their  domicile  abroad.  This 
decision  was  followed  by  Greenlaw  v.  Greenlaw,  12  N.  H.,  200.  The  court  say  : 
if  the  defendant  never  had  any  domicile  in  this  state,  the  libellant  could  not 
come  here,  bringing  with  her  a  cause  of  divorce,  over  which  this  court  had  juris- 
diction. If  at  the  time  (of  the  alleged  offence)  the  domicile  of  the  parties  was 
in  Maine,  and  the  facts  furnished  no  cause  for  divorce  there,  she  could  not  come 
here  and  allege  those  matters  which  had  already  occurred,  as  a  ground  of  divorce 
under  the  laws  of  this  state.  Shoiild  she,  undor  such  circumstances,  obtain  a 
decree  of  divorce  here,  it  must  be  regarded  as  a  mere  nullity  elsewhere.  In 
Frary  v.  Frary,  10  N.H  61,  importance  was  attached  to  the  fact,  that  the  marriage 
took  place  in  New  Hampshire;  and  it  was  held  that  the  court  had  jurisdiction  of 
the  wife's  application  for  a  divorce,  notwithstanding  the  offence  was  committed  in 
Vermont,  but  during  the  time  of  the  wife's  residence  in  New  Hampshire,  see  also 
Kimball  v.  Kimball,  13  N.  H.  225  ;  Bachelder  v.  Bachelder,  14  N.  H.  380  ;  Pay- 
son  V.  Payson,  34  N.  II.  518  ;  Hopkins  v.  Hopkins,  35  N.  H.  474.  In  Wilcox  v. 
Wilcox,  10  Ind.  43G,  it  was  held  that  the  residence  of  the  libellant,  at  the  time  of 
the  application  for  divorce,  was  sufficient  to  confer  jurisdiction,  and  a  decree  dis- 
missing the  bill  because  the  cause  of  divorce  arose  out  of  the  state,  was  reversed, 
and  see  Tolen  v.  Tolen,  2  Blachf.  407 ;  see  also  Jackson  v.  Jackson,  1  John  424  ; 
Barber  v.  Root,  10  Mass.  263  :  Borden  v.  Fitch,  15  John  121  ;  Bradshaw  v.  Heath, 
13  "Wend.  407.  In  any  of  these  cases,  the  question  of  actual  residence  will  be 
open  to  inquiry  wherever  it  becomes   important,  notwithstanding  the   record  of 


CONSTITUTIONAL   TROTECTION.  483 

proceediug,  Avitliout  notice  of  auy  provision  to  him  for  defoncling, 
Avould  be  a  violation  of  the  constitution,  and  void ;  for  in  the  case 
we  have  discussed,  the  legishiture  has  afforded  a  kind  of  notice, 
the  best  suggested,  and  by  -which  it  is  reasonably  probable,  that 
the  party  jn-oeecded  against  -will  bo  apprised  of  what  is  going  on 
against  him,  and  opportunity  is  afibrded  him  to  defend,  a 

In  a   variety   of  other  cases,   known   as   proceedings  in  rem, 

a  Matter  of  Eiapirc  City  Bank,  18  N.  Y.  215. 

in-oceedings  is  in  due  fbrni,  and  contains  tbe  affidavit  of  residence  required  by  tbe 
l.ractice.  Leith  v.  Leith,  39  N.  II.  20,  and  McGiffert  v.  McGiflfert,  31  Barb.  C9  ; 
Todd  V.  Kerr,  42  Barb.  317.  The  reuusylvania  cases  agree  wilb  those  of  New 
Iliimp.sbirc,  in  holding  that  a  divorce  shoukl  not  be  granted  unless  the  cause 
alleged,  occurred  while  the  complainant  had  domicile  within  the  state.  Dorsey 
V.  Dorsey,  7  Walls  E.  3-19  ;  Ilollister  v.  Ilollister,  C  Penn.  St.  M9;  McDermott's 
Appeal  8  W.  and  S.  251.  For  sujiporting,  to  a  greater  or  less  extent,  the  doctrine 
stated  in  the  text,  See  Harding  v.  Alden,  9  Green  140  ;  Ditson  v.  Ditson,  4R.  I. 
87;  Paroling  v.  Bird's  executors,  13  John,  192;  Harrison  v.  Harrison,  19  Ala.  499  ; 
Thompson  v.  State,  28  Ala.  12  ;  Cooper  v.  Cooper,  7  Ohio  594  ;  Mansfield  v. 
Mclntyre,  10  Ohio  28  ;  Smith  v.  Smith,  4  Greene,  (Iowa)  2G6  ;  Yates  v.  Yates,  2 
Beasely  280  ;  McGuire  v.  McGuire,  7  Dana  181  ;  Waltz  v.  AValtz,  18  Ind.  449  ; 
Hull  V.  Hull,  2  Strob.,  Eq.,  174;  Manly  v.  Manly,  4  Chand97;  Hubbell  v.Hubbell, 
3  W^is.  (;G2  ;  Gleason  v.  Gleason,  4  Wis.  G4  ;  Hare  v.  Hare,  15  Texas  365,  and 
see  Story's  Conft.  of  Laws  §  230,  and  Bishop  on  Mar.  and  Div.,  727  et  seq. 
Vol.  2,  4th  Ed.,  §  155  et  seq.  A  number  of  cases  cited,  hold,  that  a  wife 
may  have  a  domicile  separate  fro:n  the  husband,  and  may  therefore  be 
entitled  to  a  divorce,  though  the  husband  never  resided  in  the  state. 
These  cases  proceed  upon  the  theory,  that  although  in  general,  the  domicile 
of  the  husband  is  the  domicile  of  the  wife,  yet  if  he  be  guilty  of  such  act 
or  dereliction  of  duty  in  the  relation,  as  entitles  her  to  have  it  partially,  or 
wholly  dissolved,  she  is  at  liberty  to  establish  a  separate  jurisdictional  domicile 
of  her  own.  Ditson  v.  Ditson,  4  R.  I.  87  ;  Harding  v.  Alden,  9  Green,  140  ; 
Maguire  v.  Maguire,  7  Dana  181  ;  HoUister  v.  Hollister,  0  Penn.  St.  449.  The 
doctrine  in  New  York  seems  to  be,  that  a  divorce  obtained  in  another  state  with- 
out personal  service  of  process  or  appearance  of  the  defendant,  is  absolutely 
void.  Vischer  v.  Vischer,  12  Barl).  010  ;  I\IcCTiflort  v.  McGiffert,  31  Barb.  69  ; 
Todd  v.  Kerr,  42  Barb.  317. 

Upon  the  whole  subject  of  jurisdiction  in  divorce  suits,  no  case  in  the  books  is 
1  lore  full  and  satisfactory  than  that  of  Ditson  v.  Ditson  supra,  which  reviews  and 
comments  upon  a  number  of  the  cases  cited,  and  particularly  xipon  the  Massa- 
chusetts cases  of  Barber  v.  Boot,  10  Mass.  205;  Inhabitants  of  Hanover  v.  Turner, 
14  Mass.  227  ;  Hartean  v.  Hartean,  14  Pick  181  ;  Lyon  v.  Lyon,  2  Gray  367.  The 
divorce  of  one  party  divorces  both,  Cooper  v.  Cooper,  7  Ohio  594.  and  will  leave 
both  at  liberty  to  enter  into  new  marriage  relations  unless  the  local  statute  ex- 
pressly forbids  the  guilty  party  from  contracting  a  second  marriage. 


iSl  CONSTITUTIONiVL   TEOTECTION. 

because  they  take  notice  ratlier  of  the  thing  in  controversy,  than  of 
the  persons  concerned,  the  process  is  served  upon  that  which  is 
the  subject  of  the  action,  without  specially  noticing  the  interested 
parties.  Some  cases  also  partake  of  the  nature  of  both  proceed- 
ings in  rem,  and  of  personal  actions,  since,  although  they  proceed 
by  seizing  property,  they  also  contemplate  the  service  of  process 
on  the  defendant  in  the  action.  Of  this  class,  are  the  proceedings 
by  foreign  attachment,  in  which  the  property  of  a  non-resident  or 
concealed  debtor  is  seized  and  retained  by  the  officer  as  security 
for  the  satisfaction  of  any  judgment  that  may  be  recovered  against 
him,  but  at  the  same  time  process  is  issued  to  be  served  upon  the 
defendant,  and  which  must  be  served,  either  personally  or  by  such 
substituted  service,  a. 

Thus  too,  attachments  are  allowed  against  parties  other  than 
corporations,  represented  to  be  absent,  absconding  or  concealed 
debtors  ;  and  the  proceeding  results  in  the  sale  of  their  property, 
and  the  appropriation  of  its  avails,  to  the  benefit  of  the  alleged 
creditors,  and  the  only  notice  required  is  a  publication  in  certain 
newspapers,  b  So  in  justices  courts,  attachments  are  authorized 
against  persons  who  have  departed,  or  are  about  to  depart  from 
the  county,  or  keep  concealed  with  certain  intent  ;  and  the  notice 
required  is  the  leaviug  the  attachment  at  the  last  place  of  residence 
of  the  party,  if  such  place  exists,  or,  if  not,  with  the  person  in 
whose  possession  the  goods  may  be  found,  c 

There  are  many  other  examples  of  the  same  kind,  such  as  fore- 
closing mortgages  by  advertisement ;  discharging  an  insolvent 
debtor  upon  the  petition  of  a  portion  of  his  creditors,  those  not 
petitioning  being  notified  of  the  proceedings  only  by  advertisment 
in  the  newspapers.  Various  prudential  regulations  are  made  with 
respect  to  their  remedies  ;  but  it  may  possibly  happen,  notwith- 
standing all  these  precautions,  that  a  citizen  who  owes  nothing 
and  has  done  none  of  the  acts  mentioned  in  the  statutes,  may  be 
deprived  of  his  estate,  without  any  actual  knowledge  of  the  process 
by  which  it  has  been  taken  from  him.  d 

It  was  said  by  the  Court  of  Appeals, e  "If  we  hold,  as  we  must, 

a  Coolcy  ou  Lim.  403.  h  2  Ecv.  Stat.  3,  §§  1,   28. 

c  2  Eev.  Stat.  230,  2,  §§  2G-31 

d  Mutter  of  Empire  Citj'  Bank,  Supni.  e  Id. 


COXSTITUTION.VL  rilOTECTION.  485 

in  order  to  sustain  this  legislation,  tliut  the  coustitution  does  not 
positively  require  personal  notice,  in  order  to  constitute  a  legal 
proceeding  due  process  of  law,  it  then  belongs  to  the  legislature 
to  determine  in  the  particular  instance,  whether  the  case  calls  for 
this  kind  of  exceptional  legislation,  and  what  manner  of  construc- 
tive notice  shall  bo  sufficient  to  reasonably  apprise  the  party 
proceeded  against,  of  the  legal  steps  which  are  taken  against  him. 

A  case  may  be  supposed,  where  the  reason  for  departing  from 
the  more  safe  rule  of  the  common  law  is  so  plainlj-  frivolous,  or 
the  provision  for  notice  so  clearly  colorable  and  illusory,  that  the 
courts  would  bo  called  upon  to  declare  the  enactment  a  fraud 
upon  the  constitution." 

But  it  is  still,  the  doctrine  of  the  courts  that  this  substituted 
service  is  restricted  in  its  legal  efiect,  and  cannot  be  made  available 
for  all  purposes,  a  "  It  will  enable  the  court  to  give  effect  to  the 
proceeding,  so  far  as  it  is  one  in  rem,  but  when  the  res  is  disjoosed 
of,  the  authoritj^  of  the  court  ceases.  The  statute  may  give  it 
effect  so  far  as  the  subject  matter  of  the  i)roceeding  is  within  the 
limits,  and  therefore  under  the  control  of  the  state,  but  the  notice 
cannot  be  made  to  stand  in  the  place  of  process,  so  as  to  subject 
the  defendant  to  a  valid  judgment  against  him  personally."  h 

"  In  attachment  proceedings,  the  publislied  notice  may  be  suffi- 
cient to  enable  the  plaintiff  to  obtain  a  judgment  which  he  can 
enforce  by  sale  of  the  property  attached,  but  for  any  other  purpose, 
such  judgment  woiild  be  ineffectual.  The  defendant  could  not  be 
followed  into  another  state  or  country,  and  there  have  recovery 
against  him  upon  the  judgment  so  obtained,  as  an  established 
demand.  The  fact  that  jorocess  was  not  personally  served,  is  a 
conclusive  objection  to  the  judgment  as  a  personal  claim,  unless 
the  defendant  caused  his  appearance  to  be  entered  in  the  attach- 
ment proceedings."  c  "  Where  a  party  has  property  in  a  state, 
and  resides  elsewhere,  his  property  is  justly  subject  to  all  valid 
claims  which  may  exist  against  him  there  ;  but  beyond  this,  dut 

a  Pawlins  v.  Bird's  Executors,  13  Joliu.  20G-207. 

b  Cooley  on  Const.  40-t. 

c  Cooley  on  Const.  Lim.  401;  Pawling  v.  Wilson,  13  John.  20G-7;  Kilburu  v 
Woodworth,  5  John.  37;  Robison  v.  Executors  of  "Ward,  8  John.  SG;  Fenton  v 
Garlock,  Id.  191;  Bates  v.  Delavan,  5  Paige,  290. 


486  COXSTITUTION.yL  TROTECTION. 

process  o/'?rtu-,  would  require  appearance  or  personal  service,  before 
the  defendant  could  be  personally  bound  by  any  judgment  ren- 
dered."    This  cannot  be  done  by  the  legislature  directly,  a 

We  have  shown  that  our  statutes  includes  divorce  cases.  The 
courts  of  the  state  where  the  complaining  party  resides,  have 
jurisdiction  of  the  subject  matter  by  this  substituted  service  of 
process  ;  and  if  the  other  party  is  a  non-resident,  they  must  be 
authorized  to  proceed  without  personal  service  of  process.  "  The 
publication  which  is  permitted  by  the  statute,  is  sufficient  to  justify 
a  decree  in  these  cases,  changing  the  status  of  the  complaining  party, 
and  thereby  terminating  the  marriage ;  and  it  might  be  sufficient 
also  to  empower  the  court  to  pass  upon  the  question  of  the  custody 
and  control  of  the  children  of  the  marriage,  if  they  were  within  its 
jurisdiction.  But  a  decree  on  this  subject  could  only  be  abso- 
lutely binding  on  the  parties,  while  the  children  remained  within 
the  jurisdiction ;  if  they  acquire  a  domicile  in  another  state  .or 
country,  the  judicial  tribunals  of  that  state  or  country  would  have 
authority  to  determine  the  question  of  their  guardianship  there,  h 

"  But  in  divorce  cases,  no  more  than  in  any  other,  can  the  court 
make  a  decree  for  the  payment  of  money  by  a  defendant  not 
personally  served  with  process,  and  not  appearing  in  the  case, 
which  shall  be  binding  upon  him  personally.  It  must  follow  in 
such  a  case,  that  the  wife  when  complainant,  cannot  obtain  a  vahd 
decree  for  ahmony  nor  a  valid  judgment  for  costs.  If  the  defend- 
ant had  j)i'operty  within  the  state,  it  would  be  competent  to  provide 
by  law  for  the  seizure  and  appropriation  of  such  property  under 
the  decree  of  the  court,  to  the  use  of  the  complainant,  but  the 
legal  tribunals  elsewhere,  would  not  recognize  a  decree  for  alimony 
or  for  costs,  not  based  on  personal  service  or  appearance.  The 
remedy  for  the  complainant  must  generally,  in  these  cases,  be  con- 
fined to  a  dissolution  of  the  marriage,  with  the  incidental  benefits 
springing  therefrom,  and  to  an  order  for  the  custody  of  the  chil- 
dren, if  within  the  state."  c 

a  Same  authorities  and  Todd  v.  Kerr,  42  Barb.  317;  Ditson  v.  Ditson,  4  E.  I. 
87;  Mansfield  V.  Mclntyre,  10  Ohio,  28. 

h  Cooley  on  Const.  405;  Morrell  v.  Dickey,  1  John.  Ch.  loG;  Woodworth  v. 
Spring,  4  Allen,  321;  Potter  v.  Hiscox,  30  Conn.  508-0. 

c  Cooley  404. 


CONSTITUTIONAL  PROTECTION.  -187 

Other  metliocls  of  taking  the  private  property  of  persons  -with- 
out their  consent,  are  the  statutes  authorizing  the  taking  of  the 
property  of  hinatics,  idiots,  and  habitual  drunkards,  to  be  secured 
for  their  future  support,  or  for  the  payment  of  their  debts ;  also 
statutes  authorizing  the  taking  of  the  property  of  infants  to  pro- 
vide the  means  of  their  nurture,  education  or  support,  and,  for 
more  profitable  investment  of  the  proceeds,  and  also,  for  the  par- 
tition or  sale  of  the  estates  of  tenants  in  common,  and  for  a  distri- 
bution of  such  estates.  All  these  matters  are  made  subjects  of 
judicial  investigation,  and  courts  are  the  most  appropriate  depart- 
ments with  which  to  entrust  the  administration  of  the  power.  In 
all  such  cases  there  will  arise  disputes  of  fact,  and  the  judiciary  are 
the  most  appropriate  power  to  inquire  and  judge  as  to  what  is  just 
and  proper  in  the  premises.  In  the  cases  of  lunatics,  idiots,  and 
infants  especially,  the  parties  in  interest  are  regarded  in  theory, 
as  being  incompetent  to  act  in  their  own  behalf,  and  courts  are 
therefore  the  most  competent  and  impartial  fonim  and  body  to 
inquire  into,  and  to  guard  these  interests.  As  to  the  power  of  the 
legislature  to  grant  it,  and  of  the  courts  to  exercise  its  administra- 
tion, it  has  been  adjudged  by  the  court  of  dernier  resort  in  this 
state,  a  "  It  is  clearly  (says  Chancellor  Walworth,)  Anthin  the 
powers  of  the  legislature,  as  the  parents  pairia,  to  prescribe  such 
niles  and  regulations  as  it  may  deem  proper,  for  the  superintend- 
ence, disposition  and  management  of  the  property  and  effects  of 
infants,  lunatics,  and  other  persons  who  arc  incapable  of  managing 
theu-  own  affairs." 

But  it  has  been  held,  that  an  act  of  the  legislature  entitled  "An 
act  for  the  better  regulation  and  discipline  of  the  New  York  State 
Inebriate  As^dum"  was  void,  which  authorized  a  Jadge  of  the  Su- 
Dreme  Court,  or  county  judge  of  the  county  in  which  an  inebriate 
.night  reside,  to  commit  such  inebriate  to  said  asylum  upon  the 
•dfiidavits  of  two  respectable  practicing  physicians,  and  two  respec- 
table citizens  freeholders  of  such  county,  to  the  effect,  that  such 
inebriate  is  lost  to  self  control ;  unable  from  such  inebriation,  to 
attend  to  business,  or  is  thereby  dangerous  to  remaui  at  large ; 
such  commitment  to  be  until  the  examination  provided  by  law 
shall  be  had,  in  no  case  for  a  longer  period  than  one  year.     This 

u  Cov-iiaa  ^  Van  SurLiy,  20  Weml.  37:3. 


488  CON^STITUTIONAL  rUOTECTION. 

act  authorized  an  ex  parte  proceeding,  which  deprived  a  man  of 
his  hbertj  ;  it  might  be  for  one  year,  without  an  opportunity  of 
being  heard  in  his  defence ;  without  his  day  in  court.  This  was 
not  regarded  as  due  process  of  law,  and  was  an  act  repugnant  to 
the  constitution  of  this  state  and  of  the  United  States,  a 

AYhile  it  seems  to  be  generally  conceded,  that  general  statutes 
may  be  enacted  to  exercise  these  powers  in  all  cases,  it  has  been 
greatly  controverted,  whether  the  legislature  may  enact  a  special 
law  that  shall  apply  to  control  and  direct  in  a  single  or  individual 
case,  on  the  ground,  that  such  an  act  would  be  the  exercise  of  a 
power,  that  in  its  nature  partakes  of  the  judicial,  not  legislative 
authority;  or  more  properly,  is  a  mingling  of  legislative  and  judi- 
cial power.  A  jealousy  of  the  legislature,  in  the  disposition  to 
exercise  of  such  a  power,  seems  to  have  prevailed  to  such  an 
extent  in  some  of  the  states,  as  to  have  called  for  constitutional 
protection  against  it.  In  the  states  of  Yirginia,  Maryland,  Ken- 
tucky, Indiana,  Michigan,  New  Jersey,  Missouri,  Oregon,  and 
Nevada,  are  found  provisions  forbidding  sjxcial  laws,  authorizing 
the  sales  of  the  estates  of  minors  and  other  persons  of  legal  disa- 
bihty.  In  the  constitution  of  some  of  the  other  states,  there  is 
a  prohibition  against  all  special  laws,  where  general  laws  can  be 
made  applicable.  But  in  the  state  of  Massachusetts,  it  has  been 
held  b  by  its  courts,  that  notwithstanding  there  was  a  general 
statute  on  the  subject  by  the  legislature,  the  legislature  could,  by 
the  use  of  a  parental  or  tutorial  power  for  purposes  of  kindness, 
without  interfering  with  the  rights  of  other  persons,  legislate  to 
exercise  this  power  by  a  special  act.  And  to  the  same  effect,  has 
been  the  judicial  view  of  the  courts  in  the  state  of  Ohio;  c  and  such, 
was  there  said,  to  be  the  power  of  the  English  parliament ;  and  it 
seems,  that  the  rule  in  this  state  is,  that  while  the  legislature 
cannot  generally,  constitutionally  enact  a  law  which  shall  transfer 
an  estate  or  the  beneficial  use  of  property  of  one  person  to  another, 
there  exists  an  exception  in  that  class  of  cases,  where  the  rights  of 
third  persons  are  not  concerned,  as  in  cases  of  infants,  lunatics,  and 
others,  where  it  can  be  legally  presumed,  that  the  owner  of  tho 

a  Matter  of  Jones,  30  How.  Tr.  E.  MG. 
b  Eice  V.  Parkman,  16  Mass.  331. 
c Carroll  v.  Olmstead,  16  Ohio,  260. 


CONSTITUTIONAL  PROTECTION.  489 

property  himself,  would  have  given  his  consent  to  the  beneficial 
act,  and  so  to  use  his  property,  if  he  had  been  in  a  situation  to 
act  for  himself ;  and  in  cases  where  the  act  goes  no  further  than 
to  exercise  that  paternal  or  tutorial  power  over  the  persons  and 
papers  of  infants  and  others,  incompetent  to  act  for  themselves. 
Tliis  power  existed  at  common  law ;  it  was  the  inherent  right  of 
the  sovereign  power ;  Jind  it  may  be  therefore  exercised  by  general 
laws,  or,  under  peculiar  circumstances,  by  a  special  act  of  legisla- 
tion.rt  In  New  Hampshire,  a  dilierent  interpretation  has  been  had  a  i 
to  the  effect  of  special  legislation  on  such  subjects,  where  general 
laws  exist ;  and  under  the  provisions  of  the  constitution  of  tliat 
state,  h 

This  species  of  legislation,  says  Judge  Cooley,  in  his  Avork  on  con- 
stitutional limitations,  c  may  perhaps  be  properly  called  prerogative 
remedial  legislation.  It  hears  and  determines  no  rights ;  it 
deprives  no  one  of  his  property ;  it  simply  authorizes  one's  real 
estate  to  be  turned  mto  personal,  on  the  application  of  the  person 
representing  his  interest,  and  under  such  circumstances,  that  the 
consent  of  the  owner,  if  capable  of  giving  it,  would  be  presumed. 
It  is  in  the  nature  of  the  grant  of  a  privilege  to  one  person,  whicL 
at  the  same  tune,  affects  the  rights  of  no  other  person  injiiiiously 

It  was  laid  down  as  doctrine  in  the  Supreme  Ccrirt  of  this  statt 
by  Bronson  J.,(Z  (affirmed  in  ths  court  of  errors)  as  follows:  "In  con- 
sequence of  the  imperfection  which  per^-ades  all  things  appertain- 
ing to  man;  cases  will  sometimes  arise  which  have  not  been  provided 
for  by  general  laws,  and  ■;7mch  call  for  the  exercise  of  a  higher 
power  than  that  possessed  by  courts  of  justice  ;  and  if  individual 
interest  can,  under  no  possible  circumstances,  be  changed  or 
affected  by  private  acts  of  the  legislature,  made  without  consent, 
it  may  happen,  that  an  infant,  with  a  large  estate  in  expectancy, 
will  be  utterly  destitute  of  the  means  of  education  and  support. 
Although  the  legislature  ought  not  to  interfere  upon  light  conside- 
rations, I  cannot  think  that  there  is  any  constitutional  impedi- 
ment in  the  way  of  enacting  private  laws  affecting  individual 

a  Cochran  v.   Vuu  Surlay,   20  Wend.   380;  Wilkiuson  v.  Lelanil  2  Pet.  G57 
Ervine's  Appeal,  16  Peuu,  St.  K.  256. 

h  Opiniou  of  Judges,  4  N.  H.  572.  c  T.  10  3. 

d  Cochran  v.  Van  Surlay,  15  "Wend.  411, 

62 


490  CONSTITUTIOX.VL  PrvOTECTION. 

interests,  where  proper  care  is  taken  to  preserve  the  substantial 
rights  of  the  parties." 

But  the  rule  is  clearly  otherAvise  in  cases  where  the  legislature 
assumes  to  exercise  the  power  of  inquiry  into  facts,  and  to  deter- 
mine rights  by  legislation  between  parties  adversely  claiming 
interests,  as  between  debtor  and  creditor,  or  as  to  clauns  to  real 
estate,  or  to  authorize  a  sale  of  real  estate  to  satisfy  demands  in  favor 
of  a  party  that  have  not  been  judicially  determined.  This  is  clearly 
attempting  to  exercise  judicial  power,  and  is  adjudging  and  clii'ecting 
the  application  of  one  person's  property  to  another.  It  is  so  clearly 
the  exercise  of  a  power  which  has  never  been  conferred  upon  the 
legislatiu'e,  that  their  act  in  such  or  similar  cases,  would  be  void,  a 

And  so  it  was  held  in  the  Court  of  Appeals  in  this  state,  in  a 
case  where  lands  had  been  devised  to  trustees  for  the  use  of  the 
testator's  daughter  for  life,  with  remainders  in  fee  to  her  issue  living 
at  the  time  of  her  decease,  and  for  want  of  such  issue,  to  all  the 
grand-children  of  the  testator  then  living.  During  the  life  of  the 
daughter,  (she  having  children  living,)  a  statute  was  passed  by  the 
legislature,  authorizing  the  trustees  with  the  approbation  of  a 
Judge  of  the  Supreme  Court,  to  sell  the  lands,  and  out  of  the 
proceeds  to  x^ay  their  commissions,  costs,  and  expenses,  and  all 
assessments  and  liens  on  the  lands,  and  to  invest  the  surplus  in  secu- 
rities to  be  held  in  trust,  the  same  as  if  the  lands  were  held  under  the 
will.  It  was  held  by  the  court,  that  no  necessity  for  the  act  of  the 
legislature  having  appeared,  either  in  the  statute  or  aside  from  it,  on 
account  of  the  infancy  or  other  incapacity  of  the  persons  living 
who  had  vested  or  contingent  interests  in  the  estate,  that  the  act 
was  not  within  the  powers  delegated  to  the  legislature,  and  that 
the  trustees  could  give  no  title  to  the  lands  sold  in  pursuance  of 
it.  h  It  will  doubtless  often  happen,  in  a  government  like  our's, 
where  the  separate  powers  of  the  several  departments  are  not 
ex]^)ressly  defined  and  marked  out,  that  even  the  legislative  depart- 
ment may  pass  acts  of  this  character  without  that  due  considera- 
tion of  the  proper  boundaries  which  marks  the  separation  of 
legislative,  from  judicial  functions.  This  is  also  the  estabhshed 
rule  in  the  state  of  Pennsylvania,  c 

o  Lane  v.  Dorman,  3  Scam.,  Ill,  R.  242,  6  Mich.  K.  193. 

h  Powers  v.  Bergen,  6  N.  Y.  338.  c  Ervine's  Appeal,  IG  Penu.  St.  E.  256. 


CONSTITUTIONAL  rilOTECTION.  491 

Tho  courts  of  rcmisylvunia  have  spokuu  iii  most  emphatic  terms 
against  special  acts  of  legislation  that  affect  individual  rights,  a 
they  say  :  "  Wheu  in  the  exercise  of  proper  legislative  powers 
general  laws  are  enacted  which  bear,  or  may  bear,  upon  the  whole 
community,  if  the}'  are  unjust,  and  against  the  spirit  of  the  con- 
stitutioij,  the  whole  connnunity  Avill  be  interested  to  procure  their 
repeal,  in  a  voice  potential,  and  that  is  the  great  security  against  un- 
just and  unfair  legislation.  But  when  individuals  are  selected  from 
the  mass,  and  laws  are  enacted  atiecting  their  propert}',  without  sum- 
mons or  notice  at  the  instigation  of  an  interested  party ;  who  is  to 
stand  up  for  them,  thus  isolated  from  the  mass,  in  injury  and 
injustice '?  Where  are  they  to  seek  rehef,  from  such  acts  of  despotic 
power  ?  They  have  no  refuge  but  in  the  courts,  the  only  secure 
place  for  determining  conflicting  rights  by  due  course  of  law. 
But  if  the  judiciary  give  way,  and  confesses  itself  too  weak  to 
stand  against  the  aiitagonism  of  the  legislature,  and  the  bar  ;  one 
independent,  co-ordinate  branch  of  the  government,  will  become 
the  subservient  handmaid  of  another  ;  and  a  quiet  insidious  revolu- 
tion will  be  effected  in  the  administration  of  the  government, 
while  its  form  on  paper  remains  the  same." 

Our  constitutions  were  established  for  the  protection  of  per- 
sonal safety,  and  private  property.  They  addi'ess  themselves  to 
the  common  sense  of  the  people,  and  ought  not  to  be  filed  away 
by  legal  subtleties.  They  have  their  foundations  in  natural  justice; 
and,  without  their  pervading  efficacy,  other  rights  would  be  useless. 
If  the  legislature  possessed  an  irresponsible  power  over  every 
man's  private  estate,  whether  acquired  by  will,  by  deed,  or  by 
inlieritance,  all  inducement  to  acquisition,  to  industry  and  economy 
would  be  removed.  The  principal  object  of  government  is  tho 
administration  of  justice  and  the  promotion  of  morals.  But  if 
property  is  subject  to  the  caprice  of  an  annual  assemblage  of 
legislators,  acting  tumultuously,  and  without  rule  or  precedent ; 
and  without  hearing  the  party,  stability  in  property  will  cease,  and 
justice  be  at  an  end.  When  the  the  constitution  has  interdicted 
the  government  from  taking  private  property  for  puU'ic  use  without 
compensation,  how  can  the  legislature  take  it  and  dispose  of  it 
according  to  their  will  ? 

a  Id.  268. 


i92  COXSTITUTIONiUj  rE.OTECTI0N. 

Under  our  system,  as  lias  been  already  said,  the  legislature  can 
perform  no  judicial  functions;  it  is  their  province  to  enact  laws; 
that  of  the  judiciary  to  expound  them  ;  and  that  of  the  executive 
to  enforce  them.  The  judicial  power  of  the  state  is  its  whole 
judicial  power ;  the  legislature  Ciinnot  exercise  any  part  of  it ; 
there  is  no  such  thing  under  the  constitution  as  a  mixed  power, 
partly  judicial,  partly  legislative ;  were  it  so,  it  must  be  exercised 
in  common ;  in  a  joint  body,  for  the  juchciary  possess  as  much 
power  to  legislate,  as  the  legislature  to  adjudicate,  a 

The  framers  of  the  constitution,  wisely  sought  to  distribute  the 
different  powers  of  government,  and  to  keep  them  separate  and 
distinct,  and  each  withm  its  own  limits.  In  practice  however,  it 
is  sometimes  difficult,  if  not  impossible,  to  lay"  down  rules  which, 
in  all  cases,  shall  determine  the  precise  limits  of  constitutional 
restraint,  so  that  in  the  exercise  of  the  duties  of  one  of  the 
branches,  it  may  not  overstep  its  limits,  and  infrmge  upon  the 
peculiar  and  appropriate  functions  of  another  department.  These 
errors,  perhaps,  are  more  liable  to  occur  on  the  part  of  the  legis- 
lative department  than  any  other,  because  their  powers  are  less 
particularly  defined ;  but  with  a  firm  and  independent  judiciary  to 
correct  them,  no  great  evils  are  likely  to  occur  in  that  way.  h 

a  Greenough  v.  Greenough,  11  Penn.  St.  K.  19-4. 
h  Denny  v.  Mattoon,  2  Allen  361. 


CON'STITUTIUNAL   I'ltOTECTION  TO   PERSONAL  LIBERTY.  493 


CHAPTER  XYI. 

OF  THE  CONSTITUTIONAL  PROTECTIONS  TO  PERSONAL  LIBERTY. 

The  constitutioual  protections  provided  for  tlie  personcal  liberty 
of  the  citizen,  are  to  be  found  in  both  the  national  and  state  con- 
stitutions, and  are  expressed  in  similar  language.  "  The  privilege 
of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless,  when, 
in  cases  of  rebeUion  oi-  mvasion,  the  public  safety  require  it." 
Const.  U.  S.,  Art.  1,  §9;  Const,  of  N.  Y.  of  184G,  Art.  1,  §4. 
"  The  citizens  of  each  state  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  of  the  several  states."  Const.  U.  S.,  Ai't.  4, 
§2.  "No  soldier,  shall  in  time  of  peace  be  quartered  in  any 
house,  without  the  consent  of  the  owner,  nor  in  time  of  war  but  in 
a  manner  to  be  i^rescribed  by  laAv."  Id.,  Art.  3  of  the  Amend- 
ments of  the  Const,  of  0.  S.  "  The  right  of  the  people  to  be 
secure  in  their  persons,  houses,  papers  and  efiects,  against  unrea- 
sonable searches  and  seizures,  shall  not  be  violated,  and  no  war- 
rants shall  issue  but  upon  probable  cause,  supported  by  oath  or 
alhnnation,  and  particularly  describmg  the  place  to  be  searched, 
and  the  person  or  thing  to  be  seized."  Id.,  Art.  4  of  Amendments. 
'•  No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  in- 
famous crime,  unless  upon  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia  when  in  actual  service  in  time  of  war,  or  public  danger, 
nor  shall  any  person  be  subject  for  the  same  offence  to  be  twice 
put  in  jeopardy  of  hfe  or  limb ;  nor  shall  be  compelled  m  any 
criminal  case  to  be  a  witness  against  himself,  nor  be  deprived  of 
life,  liberty  or  property  without  due  process  of  law,  ttc."  Id., 
Art.  5. 

"  In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial  by  an  impartial  juiy  of  the  state  and 
district  wherein  the  crime  shall  have  been  committed,  which 
district,  shall  have  been  previously  ascertained  by  law  ;  and  to  be 
informed  of  the  nature  and  cause  of  the  accusation ;  to  be  con- 
fronted with  the  witnesses  against  him ;  to  have  compulsory  pro- 


49-i    CONSTITUTIONAL  PEOTECTION  TO  PERSONAL  LIBEKTY. 

cess  for  obtaiuing  witnesses  in  liis  favor ;  and  to  liave  the  assistance 
of  counsel  for  liis  defence."  Id.,  Art.  G.  "  Excessive  bail  sliall 
not  be  required,  nor  excessive  fines  imposed,  nor  crael  and  unusual 
punishments  inflicted."  Id.,  Art.  8.  "Neither  slavery  nor  involun- 
tary servitude,  except  as  a  punishment  for  crime  whereof  the 
party  shall  have  been  duly  convicted,  shall  exist  within  the  United 
States,  or  any  place  subject  to  their  jurisdiction."     Id.,  Art.  13. 

"  ^yi  persons  born  or  naturahzed  in  the  United  States,  and  sub- 
ject to  the  jui'isdiction  thereof,  are  citizens  of  the  United  States, 
and  of  the  state  wherein  they  reside.  No  state  shall  make  or  en- 
force any  law  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States,  nor  shall  any  state  deprive  any  per- 
son of  life,  liberty  or  property  without  due  process  of  law,  nor 
deny  any  person  within  its  jurisdiction  an  equal  protection  of  the 
laws."  Id.,  Art.  1-1.  By  the  constitution  of  this  state  adopted  in 
184G,  it  is  provided,  "  that  no  member  of  this  state  shall  be  dis: 
franchised,  or  deprived  of  any  of  the  rights  or  privileges  secured 
to  any  of  the  citizens  thereof,  unless  by  the  law  of  the  land,  or  the 
judgment  of  his  peers."  Art.  1,  §  1.  The  privilege  of  the  writ  of 
liaheas  covpus,  and  the  prohibition  against  excessive  bail,  excessive 
fines,  and  crael  and  unusual  punishments,  are  the  same  as  in  the 
United  States  constitution,  and  to  which  is  added,  the  provision 
that  Avitnesses  shall  not  be  unreasonably  detained.  Id.,  §§  4  and  5. 
"  No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  in- 
famous crime,  (except  in  cases  of  impeachment,  and  in  cases  of 
militia  when  in  actual  service ;  and  the  land  and  naval  forces  in 
time  of  war,  or  wliicli  this  state  may  keep  with  the  consent  of 
congress  in  time  of  peace  ;  and  in  cases  of  petit  larceny  under  the 
regulation  of  the  legislature,)  unless  on  i)resentment  or  indictment 
of  a  grand  jury.  And  in  any  trial  in  any  court  whatever,  the 
party  accused  shall  be  allowed  to  appear  and  defend  in  person, 
and  with  counsel  as  in  civil  actions.  No  person  shall  be  subject 
to  be  twice  put  in  jeopardy  for  the  same  offence,  nor  shall  he  be 
compelled  in  any  criminal  case  to  be  a  witness  against  himself,  nor 
be, deprived  of  life,  liberty  or  property  without  due  process  of 
law,"  &c.     Id.,  §  6. 

Perhaps,  in  no  government  in  the  world,  does  the  citizen  find 
such  full,  hberal  and  ample  protection,  and  so  large  a  share  of 


CONSTITUTIONAL  mOTECTlON  TO   PERSON.^^  LIBERTY.  495 

civil  and  political  liberty,  as  a  citizen  of  the  United  States,  who  is 
such,  by  reason  of  being  a  citizen  of  any  one  of  the  sovereign 
states  that  compose  the  Union,  as  also,  those  "who  are  citizens  of 
the  particular  states  ■wherein  they  reside  ;  and  all  persons  are  such 
citizens,  and  entitled  to  these  protections  and  privileges,  who  have 
either  been  born,  or  who  have  been  naturalized  in  the  United 
States,  or  in  any  of  the  states,  or  who  are  subject  to  the  jurisdic- 
tion of  the  United  States. 

At  what  time  the  right  to  personal  Uberty  first  became  a  subject 
of  political  concern  in  England,  belongs  to  history.  The  manner 
in  which  it  was  finally  secured  l)y  constitutional  ("nactments  ;  the 
spirit  and  success  Avith  which  it  was  defended  when  assailed  by 
arbitrary  princes ;  the  elevating  eilects  upon  personal  character 
obtained  by  its  enjo3-ment  to  the  citizen ;  are  among  the  influences 
which  controlled  the  American  statesmen  in  giving  it  to  the  citizen 
of  the  American  repiiblics,  secured  by  the  fundamental  laAv. 

We  do  not  propose  to  enter  upon  the  history  of  the  agitations, 
strifes,  and  struggles  of  the  masses,  with  the  ruling  povrers  of  gov- 
ernment, either  in  our  own  countr}-,  or  in  that  from  which  we  derived 
many  of  our  laws;  and  which  resulted  in  obtaining  for  the  citizen 
the  constitutional  securities  and  rights  to  civil  and  political  liberty, 
which  we  have  above  copied  from  the  fundamental  law  of  these 
governments.  Nor  shall  wo  attempt  in  this  work,  to  give  the  ex- 
planations of  causes,  by  which  one  joortion  of  a  people,  created 
by  a  just  and  impartial  Creator  to  an  equality  of  rights  with  every 
other  portion,  and  endowed  by  Him  with  the  unahenable  rights  of 
life,  liberty  and  the  pursuit  of  happiness,  became,  in  the  process 
of  time,  reduced  to  the  unhappy  condition  of  serfs,  villeins,  menials 
and  slaves  ;  the  many  submitting  themselves  to  servitude  for  the 
few,  called  the  governing  classes.  These  matters  belong  to  the 
historian,  rather  than  the  law  writer.  It  will  be  our  duty  to  as- 
sume, that  every  citizen  is  now,  in  regard  to  these  sacred  rights 
and  privileges,  entitled  to  an  equal  protection ;  that  these  rights 
are  just  and  natural ; — and,  that  the  constitution  as  we  find  it,  is 
to  have  a  favorable  interpretation,  as  to  all  its  provisions,  in  favor 
of  the  liberty  of  the  citizen. 

Although  we  have  chosen,  not  to  enter  into  the  history  of  the 
maimer  of  securing  this  right  to  personal  liberty  to  the  citizen,  we 


49G  CONSTITUTIONAL  PROTECTION  TO  PERSONAL  LIBERTY. 

cannot  well  discuss  it  as  a  natural  riglit,  without  a  slight  reference 
to  its  value.  It  is  a  right,  as  has  been  well  declared,  unalienable 
in  its  nature  ;  inherent  in  eveiy  man,  woman,  and  child  ;  and  of  in- 
estimable value  in  giving  character  and  dignity  to  the  citizen. 

"Man,"  says  Montesquieu,  "is  born  in  society,  and  there  he  re- 
mains." But  as  a  member  of  society,  in  the  exercise  of  his  right 
of  hberty,  as  well  as  his  other  absolute  rights,  he  becomes  subject 
to  such  Umitations,  and  to  such  penalties  for  the  violations  of  the 
rights  of  others,  as  the  common  welfare  of  all,  and  the  just  ends 
of  government  may  require. 

Government,  is  essential  to  the  preservation  of  individual  rights, 
including  that  of  liberty,  and  is  the  necessity  of  every  society. 
So,  that,  properly  to  enjoy  the  privileges  of  liberty,  the  citizen 
needs  the  protection  of  government.  It  cannot  be  otherwise  than 
flattering  to  the  pride  of  every  intelligent  American  citizen  as  he 
reads  the  history  of  the  nations  of  the  earth,  and  estimates  their 
condition,  to  mark  the  progress,  and  estimate  the  advantages  of  the 
liberalizing  and  elevating  influence  exerted  upon  the  character  of 
a  people  where  the  rights  of  personal  liberty,  and  the  equality  of 
all  men  before  the  law,  is  fundamentally  secured.  It  is  seen  to 
impart  not  only  vital  energy  to  the  government  itself,  but  it  adds 
a  stimulus  that  invites  the  citizen  into  enterprises  upon  the  con- 
fidence of  governmental  protection  ;  stimulates  his  ambition  to  act 
upon  a  sense  of  individual  independence,  which  a  knowledge  of  his 
high  nature,  and  noble  destiny  alone  can  inspire  ;  and  induces  him 
to  pursue  happiness  in  all  the  unobstnicted  paths  which  either 
pleasure  or  profit  may  tempt  him  to  follow ;  and  employ  all  his 
powers  in  the  exercise  of  that  liberty  which  secures  the  highest 
enjoyments  of  life. 

The  limitations  to  the  riglit  to  j^ersonal  liberty,  are  either  of  a 
public,  or  of  a  private  nature.  Among  those  which  are  public,  is 
that  of  individual  punishment  for  the  commission  of  crime,  and 
this  punishment,  is  effected  through  the  instrumentality  of  the 
courts.  "  A  court  of  justice,  it  has  been  well  said,  represents  the 
judicial  majesty  of  the  people.  Through  the  forms  of  law,  it  utters 
its  mighty  voice  in  judgment.  Property,  character,  liberty,  and 
life  itself,  are  involved  in  the  issues  that  are  brought  before  it,  and 
it  needs  all  the  aid  wdiich  composure  can  lend  to  reason,  to  enable 


CONSTITUTIONAL  PIIOTECTION  TO  TEllSON.VL  LIBERTY.  497 

It  to  discharge  wisely,  and  impartially,  its  manifold  and  momentous 
duties."  a  Under  this  general  term,  or  class  of  crime,  is  intended 
to  be  included  all  public  offences,  down  to  the  lowest  gi-ade  of 
misdemeanors,  including  also  contempts  committed  against  courts, 
and  other  public  l)odies  who  are  invested  with  authority  to  pre- 
seiTe  order. 

It  follows,  from  the  submission  of  the  individual  t(3  the  govern- 
ment of  the  state  for  his  protection,  that  these  rights  to  the  enjoy- 
ment of  personal  liberty,  are  not  so  absolute,  that  they  may  not  be 
lost  or  forfeited,  and  it  is  entrastedto  the  exercise  of  governmental 
authority  to  determine,  for  what  causes  these  rights  and  privileges 
shall  cease  to  be  enjoyed  by  the  citizen.  These  rights  and  privi- 
leges can  be  properly  held  only,  to  aid  in  the  maintenance  and 
administration  of  governmental  authority,  for  the  safety  and  well- 
being  of  society.  AVhen  however,  it  shall  happen  that  the  citizen, 
or  a  class  of  citizens,  banding  themselves  together,  shall  so  act  as 
to  subvert  and  destroy  society,  there  can  be  no  question  as  to  the 
right  and  duty  of  those  charged  with  the  exercise  of  the  preroga- 
tive powers  of  sovereignty,  to  disarm  the  guilty  citizen,  by  dis- 
franchising him  of  those  privileges,  h 

"When  the  citizens  of  a  state  repudiate  the  charter  or  constitu- 
tion under  which  they  have  been  created  a  pohtical  coi-poration, 
and  under  wliich  they  have  been  entitled  to  all  the  natural  and 
mherent  pohtical  rights  which  it  allows  and  protects  ;  and  re- 
nounce their  political  connection  Avitli,  and  allegiance  to,  the 
authority  which  has  so  i:)rotected  them,  and  levy  war  upon  it,  that 
they  may  overthroAv  and  destroy  it,  and  establish  themselves  in  a 
new  organization  upon  its  ruins  ;  there  can  be  no  question  that 
their  political  franchises  are  forfeited,  and  that  they,  as  citizens, 
are  left  to  be  dealt  with  at  the  mercy  of  that  sovereignty  which 
they  attempted  to  destro}-. 

This  position  is  avcU  illustrated  m  the  recent  rebelhon,  in  which 
the  citizens  of  certam  states  of  the  Union,  attempted,  and  assumed 
by  a  ncAV  organization,  b}*  their  states,  to  renounce  then-  political 
connection  with,  and  allegiance  to  the  people  and  government  of 
the  United  States ;  recalled  their  senators  and  representatives  fi'om 

a  Hurd  on  Personal  Liberty,  7. 

h  Tifiauy's  Government  and  Const.  315. 

G3 


498  CONSTITUTIONAL  PROTECTION  TO  PERSONAL  LIBEETY. 

the  congress  of  the  Union  ;  threw  up  their  constitutions,  or  char- 
ters under  -svliich  they  existed  and  exercised  pohtical  rights  in 
respect  to  state  and  national  interests ;  adopted  other  constitu- 
tions upon  their  OAvn  assumed  authority ;  expelled  by  force  from 
tlieh  limits,  all  those  who  attempted  to  exercise  the  authority  ol 
the  United  States  therein ;  tore  down  the  flag  of  the  Union  ; 
hoisted  the  flag  of  rebellion  in  its  place ;  made  war  upon  the  na- 
tion ;  and  exerted  their  utmost  power  to  destroy  it ;  claimed  and 
were  recognized  as  having  belligerent  rights ;  earned  on  the  war 
for  years,  and  until  overcome  and  subdued  by  the  power  of  the 
nation  they  renounced  and  warred  against ;  and  only  laid  down 
then-  arms,  because  they  were  conquered  and  utterly  subdued. 
These  acts,  committed  by  them  against  the  authority  of  the  nation, 
is,  in  its  nature,  treason;  and  a  forfeiture  of  all  their  political  rights 
to  governmental  protection.  The  right  to  protection  as  a  citizen, 
cannot  co-exist  with  such  acts  of  rebellion  in  the  same  individual. 
The  commission  of  an  act  of  rebellion  against  the  government,  ex- 
tinguishes, and  forfeits  the  right  of  protection,  a 

Of  the  various  statutes  which  authorize,  direct,  or  limit  the 
amount  of  punishment  for  offences  ;  and  the  right  of  the  state  to 
inflict  it ;  presents  a  subject  that  belongs  to  works  of  practice,  or  to 
elementary  commentaries  upon  the  philosophy  of  law  and  govern- 
ment. We  are  treating  of  constitutional  rights  as  they  exist  under 
our  system,  and  to  that  end,  shall  assume  that  system  to  be  the 
best. 

The  rights  and  duties  existing  between  the  state  under  consti- 
tutional government,  and  the  citizen  of  the  same  government,  are 
correlative.  While  it  is  the  duty  of  the  state  to  protect  the  citizen 
in  all  his  rights,  including  that  of  personal  liberty,  it  is  equally  the 
duty  of  the  citizen  to  support  the  state,  by  yielding  to  all  its  rea- 
sonable demands,  not  only  of  his  means,  but  whenever  in  the 
judgment  of  the  state,  the  public  emergency  requires  it,  it  is  within 
the  power  of  the  state  to  compel,  and  the  duty  of  the  citizen  to 
jdeld  obedience  to  the  demands  of  the  state;  to  enter  into  her  ser- 
\dce,  to  defend  or  protect  and  aid  the  state  with  his  personal  service. 
This  is  but  a  reasonable  limitation  upon  his  personal  hberty,  and 
is  but  a  fulfilment  of  the  duty  due  from  him  for  governmental  pro- 
tection. 

aid.  CIC. 


CONSTITUTIOK.VL  niOTECTION  TO   TERSONM.  LIBERTY.  499 

CONTEMrXS. 

There  are  Viirious  other  conditions,  which  limit  the  enjoyment  of 
the  personal  Hberty  of  the  citizen,  arising  out  of  the  duties  he 
owes  to  the  society  of  which  he  is  a  member.  Among  these,  is 
that  of  obedience  to  a  subpoena  to  appear  and  testify  as  a  witness 
in  court,  especially  in  criminal  cases,  in  which  he  may  be  com- 
pelled to  enter  into  a  recognizance  to  appear  at  a  futui'e  day  to 
give  evidence  in  behalf  of  the  state,  and  in  case  of  his  refusal,  he 
may  be  committed  to  prison,  a  So  too  in  civil  cases,  a  refusal  to 
obey,  subjects  the  citizen  to  liability  to  punishment  for  contempt, 
which  may  extend  to  imprisonment ;  h  such  power,  harsh  as  it  may 
seem,  is  necessary  for  the  good  order  of  the  government.  Black- 
stone  says :  "  Laws  without  competent  authority  to  secure  their 
administration  from  disobedience  and  contempt,  would  be  vain  and 
nugatory.  A  power  therefore  in  the  supreme  courts  of  justice  to 
suppress  such  contempts  by  an  immediate  attachment  of  the 
offender,  results  from  the  first  principles  of  judicial  establishments, 
and  must  be  an  inseparable  attendant  upon  every  superior 
tribunal."  c 

A  WTiter  well  observes,  "  The  judiciary  would  hold  but  a  barren 
scepter,  if  their  powers  ceased  with  declaring  the  law.  They  are 
invested  with  a  power  to  enforce,  as  well  as  to  pronounce  their 
judgments.  In  many  cases  of  contumacious  conduct,  they  secure 
obedience  to  their  orders  by  attachment,  and  commitment  of  the 
delmqucnt  party.  Imprisonment  in  such  cases,  is  not  regarded 
merely  as  a  pimishment  for  contempt,  but  as  a  necessary  means  of 
enforcing  compliance  with  the  decision  of  the  court."  rf  The 
power  to  punish,  by  the  courts  for  contempts,  existed  not  only  at 
Qommon  law,  but  is  expressly  conferred  by  statute,  e  "Every 
court  of  record  shall  have  power  to  punish  as  for  criminal  con- 
tempt, persons  guilty  of  either  of  the  following  acts,  and  no  othei-s. 
1.  Disorderly,  contemptuous  or  insolent  behavior  committed  dur- 
ing its  sitting,  in  its  immediate  view  and  presence,  and  dii'ectly  tend- 
ing to  interrupt  its  proceedings,  or  to  impah-  the  respect  due  to 

a  2  Rev.  Stat.,  709  §  25.  h  Id.  278,  ^  10. 

c  4  Black  Com.  286. 

d  Hurd  on  Personal  Liberty.  9. 

e  2  Rev.  Stat.  278,  §§  8  to  13. 


500  COXSTITUTIOX-U:.  rKOTECTION  TO  TERSONAL  LIBERTY. 

its  autlioiit}-.  2.  Any  breach  of  the  peace,  noise  or  other  dis- 
turbance directly  tending  to  interrupt  its  proceedings.  3.  Wilful 
disobedience  of  any  process  or  order,  lawfully  issued  or  made  by 
it.  4.  Eesistance  wilfully  offered  by  any  person  to  the  lawful 
order  or  process  of  the  court.  5.  The  contumacious  and  unlaw- 
ful refusal  of  any  person  to  be  sworn  as  a  witness,  and  when  so 
sworn,  the  like  refusal  to  answer  any  legal  and  proper  interroga- 
tory. 6.  The  publication  of  a  false,  or  grossly  inaccurate  report 
of  its  proceedings ;  but  no  court  can  punish  as  a  contempt,  the 
publication  of  true,  full  and  fan-  reports  of  any  trial,  argument, 
proceeding,  or  decision  had  in  such  court. 

§  9.  Punishment  for  contempts  may  be  by  fine  or  by  imprison- 
ment in  the  jail  of  the  county  where  the  court  may  be  sitting,  or 
bothj  in  the  discretion  of  the  court,  but  the  fine  shall  in  no  case 
exceed  the  sum  of  $250,  nor  the  imprisonment  thirty  days  ;  and 
when  any  person  shall  be  committed  to  prison  for  the  nonpayment 
of  any  such  fine,  he  shall  be  discharged  at  the  end  of  thirty  days. 

§  10.  Contempts  committed  in  the  immediate  view  and  presence 
of  the  court,  may  be  punished  summarily ;  in  other  cases,  the  party 
charged  shall  be  notified  of  the  accusation,  and  have  a  reasonable 
time  to  make  his  defence. 

§  11.  "Whenever  any  person  shall  be  committed  for  any  contempt 
specified  in  this  article,  the  particular  circumstances  of  his  offence 
shall  be  set  forth  in  the  order  or  warrant  of  commitment. 

§  12.  Nothing  contained  in  the  preceeding  sections  shall  be  con- 
strued to  extend  to  any  proceeding  against  parties  or  ofiicers  as 
for  a  contempt  for  the  purpose  of  enforcing  any  civil  right  or  remedy. 

§  13.  Persons  punished  for  contempt  under  the  preceeding 
provisions,  shall,  notwithstanding,  be  liable  to  indictment  for  such 
contempt  if  the  same  be  an  indictable  oftence,  but  the  court  before 
which  a  conviction  shall  be  had  on  such  indictment,  shall,  in 
forming  its  sentence,  take  into  consideration  the  punishment  before 
inflicted.  By  another  provision  of  the  Eevised  Statutes,  a  every 
person  who  shall  be  guilty  of  any  criminal  contempt,  (above  enu- 
merated) shall  be  liable  to  indictment  therefor  as  a  misdemeanor, 
and  punished  with  the  same  punishment  as  other  misdemeanors. 

This  power  to  jnmisli  for  contempts,  is  also  extended  by  statute 

a  Rev.  Stat.  G92,  §  H. 


CONSTITUTIONAL  PROTECTION  TO   PERSONAL  LIBERTY.  501 

to  referees  aiuT  other  oflleers  cxerci.siiig  judieiiil  duties.  Legisla- 
tive bodies,  like  judicial  tribunals,  are  also  authorized  to  punish 
persons,  whether  members  of  their  body  or  others,  who  are  guilty 
of  any  contempt  towards  it,  by  disorderly  or  contumacious  beha- 
vior m  its  presence,  or  by  any  wilful  disobedience  to  its  orders,  and 
it  may  be  observed,  that  the  contempts  punishable  by  a  legislative 
assembly,  are  not  confined  to  proceedings  in  its  judicial  capacity, 
but  may  arise  in  the  course  of  its  legislative,  or  other  functions,  a 

The  criminal  jurisdiction  of  a  legislative  assembly,  is  much  more 
extensive  than  the  civil  courts,  or  than  that  of  ihe  courts,  embrac- 
ing the  misconduct  or  disorderly  behavior  of  its  o\\n  meudjers,  as 
well  as  misdemeanors,  breaches  of  privilege,  and  other  offences 
committed  by  other  persons.  In  both  cases,  the  offence  may  be 
committed  either  against  the  assembly  itself,  or  against  its  members 
individually.  But  unlike  the  powers  of  a  court,  which  are  limited 
by  the  letter  and  control  of  the  statute  or  common  law,  the  powers 
of  legislative  assemblies,  seems  to  be  subject  to  no  control  or 
restraint  from  any  appellate  poAver ;  and  within  the  sphere  of  this 
power,  it  depends  solely  upon  theii"  own  absolute  will  and  pleasure. 
No  other  tribunal  can  control  their  action,  set  aside  their  judg- 
ment, or  revise  their  proceedings. 

This  power,  as  a  general  rale,  will  not  be  greatly  abused,  inas- 
much, as  by  the  theory  of  our  government,  the  legislative  power 
should  be,  and  doubtless  generally  is,  confided  to  men  eminent 
for  talents,  cluu'acter,  experience  and  virtue,  and  are  selected  by 
the  people  themselves.  If  the  conduct  of  any  particular  body 
shah,  be  found  an  exception  to  the  rule  based  upon  this  theorj-, 
the  evil  is  temporaiy,  and  its  correction  Hes  with  the  people  them- 
selves. The  power  it  is  true,  if  exercised  by  con-upt  or  incompe- 
tent members,  is  dangerous  in  its  actitin,  and  the  injured  party  is, 
in  degree,  remediless. 

This  concludes  all  Ave  propose  to  say  on  the  subject  of  con- 
tempts of  courts,  which  subject,  is  one  of  the  constitution a'\  quali- 
fications, or  limitations  of  the  right  of  personal  liberty  of  the 
citizen,  except  as  to  contempts  committed  agamst  legislative  l:>odies, 
which  will  be  treated  of  in-  a  separate  chapter,  by  itself. 

a  Cushing's  Legislative  Assemblies,  §  655. 


502  CONSTITL'TION-VL  rPLOTECTION  TO  PERSONAL  LIBERTY. 

HABEAS  CORPUS. 

The  privilege  of  the  writ  of  habeas  corpus,  is  the  birthright  of 
eveiy  citizen,  fundamentally  secured  by  the  national,  as  well  as 
the  state  constitutions.  "  Personal  liberty,"  says  Blackstone, 
"  consists  in  the  power  of  locomotion,  of  changing  situation,  or  of 
moving  one's  person  to  whatsoever  place  one's  own  hiclination 
may  direct,  without  imprisonment  or  restraint,  unless  by  due 
course  of  law."  It  is  a  right  strictly  natural,  which  the  laws  have 
never  abridged  without  sufficient  cause,  and  in  this  constitutional 
government,  it  cannot  be  abridged  at  the  mere  discretion  of  the 
magistrate.  The  writ  of  habeas  corpus  is  defined  by  Hurd, a  "to 
be  that  legal  process,  which  is  employed  for  the  summary  vin- 
dication of  the  right  of  personal  liberty  when  illegally  restrained." 
It  takes  its  name  from  the  emphatic  words  which  it  contained 
when  it  was  written  in  latin.  It  was  borrowed  by  us  in  our  consti- 
tutions and  statutes  from  the  English  statute  of  31  Charles  II,  ch. 
2,  which  provided  the  gi-eat  remedy  for  the  violation  of  personal 
liberty,  by  the  writ  of  habeas  corpius  ad  snhjicicndum  and  which 
was  often  denominated  another  Magna  Chaita  of  the  kingdom. 

Employed,  as  this  writ  ever  has  been,  to  vindicate  the  right  of 
personal  liberty,  by  whatever  power  infringed,  it  became  insepar- 
ably associated  with  that  right ;  and,  in  proportion  as  the  right 
has  been  valued,  so  has  been  the  writ  by  which  it  has  been 
defended.  It  was  its  grateful  office,  which  commended  this  writ  to 
the  favorable  regard  of  the  people,  and  finally  dignified  it  by  its 
name,  the  writ  of  habca^s  corpus,  b 

This  writ  and  its  privileges,  is  not  only  secured  by  the  national 
and  state  constitutions,  but  in  this  state  also,  by  the  statute  which 
prescribes  its  form,  and  which  also  provides  that  a  penalty  of  one 
thousand  dollars,  shall  be  forfeited  to  the  party  aggrieved,  against 
the  court  or  officers  severally,  who  shall  refuse  to  grant  such  writ 
when  legally  applied  for.  c  The  forms  of  proceeding,  and  the 
variations  in  practice  applicable  to  different  conditions  of  the 
applicant,  are  also  provided  by  statute,  but  these  belong  rather  to 
the  practice  than  to  the  discussion  of  the  question  of  constitutional 
privilege. 

a  Hurd  on  Habeas  Corpus,  143.  h  Id.  144. 

c  2  Eev.  Stat.  565,  §  46. 


CONSTITUTIONAL  TROTECTION  TO  TERSONAL  LIBERTY.  503 

Tliis  provision  was  introduced  into  the  constitution,  as  one 
greatly  essential  to  the  personal  liberty  of  the  citizen.  The 
necessity  and  importance  of  such  a  writ  was  well  ai)preciated 
under  the  British  system,  and  an  English  author  says,  "  to  bereave 
a  man  of  life,  or  by  violence  to  confiscate  his  estate,  without  accu- 
sation or  trial,  would  be  so  gross  and  notorious  an  act  of  despo- 
tism, as  must  at  once  convey  the  alarm  of  tyrrany  throughout 
the  kingdom."  But  confinement  of  the  person,  by  secretly  hurry- 
ing him  to  the  jail,  where  his  sufierings  are  unkjiown  and  forgotten, 
is  a  less  public,  a  less  strildng,  and  therefore  a  more  dangerous 
engine  of  arbitrary  force.  The  writ  which  it  was  the  design  of 
this  clause  to  secure,  is  that  known  to  the  common  law  as  the  writ 
of  habeas  coiyus  ad  subjiciendum,  which  is  directed  to  one,  detaining 
another,  commanduig  the  production  of  the  person  detained,  and 
the  cause  of  such  capture  and  detention,  adjiciendum,  subjicien- 
dum, et  recipiendum,  to  do,  submit,  and  receive,  whatever  the  court 
or  ofl&cer  awarding  such  writ  should  consider  in  that  behalf,  a 

But  even  this  natural  and  constitutional  right  of  personal  liberty, 
with  all  its  securities  and  protections,  like  all  other  rights  and 
privileges  of  the  citl^xn,  is  subject  to  qualification  and  hmitatiou 
for  good  of  the  society,  and  the  protection  of  that  government,  of 
which  he  has  submitted  himself  to  become  a  member,  for  causes 
of  both  a  public,  and  those  of  a  private  nature. 

Government,  like  every  other  contrivance  of  human  invention, 
has  a  specific  end ;  but  political  government,  or  the  government 
established  by  society,  does  not  preclude  that  government  that 
existed  by  nature  before  the  organization  of  society ;  nor  that  which 
is  based  on  the  rights  of  nature,  tlui  right  of  government  by  the 
parent  of  his  oH'spring ;  nor  of  those  kindred,  though  perhaps 
delegated  rights,  which  are  substitutes  for  the  parental  relation, 
that  of  instructor  and  pupil,  master  and  servant.  Therefore  the 
theoretic  surrender,  or  resignation  by  each  citizen  of  a  portion  of 
natural  rights  to  society  to  confer  the  needful  powers  of  govern- 
ment, for  the  benefit  of  all ;  does  not'includo  the  patriarchal  or 
parental  poAver  of  government.  These  are  rights  which  cannot 
with  any  propriety  be  yielded  up,  without  doing  violence  to  nature. 

Those  limitations  of  this  right  which  are  of  a  public  nature, 

a  Smith's  Com,  3fi5. 


50-i  rOVTEFi   OF  GOYEENME^'T  OYER  PERSONAL  LIBERTY. 

Judge  Cooley,  iii  liis  treatise,  a  cliYides  into  five  sub-classes.  1. 
Those  imposed  to  preYent  tlie  commission  of  crime  which  is 
tlu'eatened.  2,  Those  in  pimishment  of  crime  committed.  3. 
Those  in  pimishment  of  contempts  of  courts,  or  of  legislative 
bodies,  or,  to  render  their  jurisdiction  effectual.  (This  class  we 
have  ah'eady  considered.)  4.  Those  necessary  to  enforce  the  duty 
citizens  owe  in  defence  of  the  state.  5.  Those  which  may  become 
important  to  protect  community  against  the  acts  of  those  who, 
by  reason  of  mental  infirmity,  are  incapable  of  seK-control. 

All  these  limitations,  are  well  recognized  and  understood ;  but 
their  particiilar  discussion  does  not  belong  to  our  subject,  especi- 
ally those  under  the  second  class ;  that  of  the  liability  to  arrest  and 
imprisonment  on  the  charge  of,  or  conYiction  for  crime,  for  which 
the  books  of  practice  must  be  consulted.  Under  this  5th  class 
are  included,  some,  who  are  unable  by  reason  of  their  mental  con- 
dition, to  render  to  the  state  in  return,  any  aid  as  a  compensa- 
tion for  the  protection  they  receive,  such  as  lunatics,  idiots  and 
helpless  paupers.  These,  no  less  than  the  responsible  citizen ;  have 
a  claim  upon  the  fostering  care  of  the  state.  As  has  been  well 
said,  "  the  iiTesponsible  lunatic  must  not  be  allowed  a  liherty 
fraught  with  danger  to  himself  and  others,  nor  must  he,  or  the 
idiot,  be  left  exposed  to  the  cupidity  and  rapacity  of  designing 
and  heartless  relatives.  Neither  must  the  invalid  pauper,  be  suf- 
fered to  starve,  in  a  land  overflowing  with  plenty."  Z> 

All  ci\dlized  governments  recognize  the  obligation  of  providing 
for  these  classes  of  citizens ;  and  just  in  proportion  to  the  progress 
of  society ;  the  advance  of  civilization  ;  and  the  amehorating  in- 
fluences of  Christianity  ;  do  we  behold  the  gratifying  evidence  of 
that  just  sense  of  this  public  duty,  by  the  erection  by  government 
of  asylums  and  work-houses  for  these  unfortunate  classes.  These 
humane  institutions,  are  taking  the  place  of  the  old  barbarous  sys- 
tem of  chains,  and  shackles,  and  whipping  for  the  lunatic,  and  of 
a  sale  of  the  pauper  to  the  lowest  bidder,  to  any  unfeeling  keeper, 
for  his  support. 

"  The  restrictions  of  personal  liberty  in  these  cases,  are  designed 
for  the  benefit  of  the  unfortunate  subjects,  and  for  the  safety  of 

a  Cooley  on  Const.  Limitations  339. 
h  Hurd  on  Personal  Liberty,  10. 


HUSB.VND   AND  "WIFE.  505 

the  community  ;  and  ceaso  when  the  cause  -which  calls  for  thoni, 
is  removed ;  as  when  the  hiuatic  recovers  his  reason,  or  the  pau- 
per becomes  possessed  of  property  adequate  for  his  maintenance, 
by  gift  or  otherwise,  or  gains  sufficient  health  and  strength  to  earn 
a  support." 

These  obligations  of  government,  are  recognized  by  statutes,  in 
I'ais  and  other  states,  the  extensive  provisions  whereof,  it  is  not  a 
part  of  the  design  of  this  Avork  to  copy. 

Those  lunitations  which  are  of  a  private  nature,  are  divided  by 
him  into  eight  sub-classes,  but  which  are,  in  this  state,  really 
reduced  to  six,  and  they  are  those  which  spring  from  the  helpless 
or  dependent  condition  of  uidividuals  in  the  various  relations  of 
life.  We  cannot  present  these  better  than  in  the  language  of  that 
learned  author, 

1.  "  The  husband,  at  common  law,  is  recognized  as  having  legal 
custody  of,  and  power  of  control  over  the  wife,  with  the  right  to 
direct  as  to  her  labor,  and  insist  upon  its  performance.  The  pre- 
cise nature  of  the  restraints  which  may  be  imposed  by  the  hus- 
band upon  the  wife's  actions,  it  is  not  easy,  fi'om  the  nature  of  the 
case,  to  point  out  and  define  ;  but  they  can  only  be  such  gentle 
resti-aints  upon  her  liberty,  as  her  improper  conduct  may  seem  to 
require,  a  The  general  tendency  of  public  sentiment,  as  well  as 
modern  decisions,  has  been  to  do  away  with  the  arbitrary  power 
which  the  husband  was  formerly  supposed  to  possess,  and 
to  place  the  two  sexes  in  the  married  state,  more  upon  a  footing  of 
equahty.  h  It  is  beUeved  that  the  right  of  the  husband  to  chastise 
liis  wife,  under  any  cii'cumstances,  would  not  be  recognized  in  this 
country,  and  in  any  case,  his  right  to  control  would  be  gone,  if  he 
should  conduct  himself  towards  the  wife  in  a  way  not  warranted 
by  the  relation,  and  which  should  render  it  improper  for  her  to 
cohabit  with  him,  or  if  he  should  be  guilty  of  such  conduct  as 
would  entitle  her  imder  the  laws  of  the  state  to  a  divorce.  His 
right  to  control  is  also  gone,  when  the  parties  hve  apart  under 
articles  of  separation." 

There  is  no  relation  in  life,  in  which  we   can   find   so  little   of 
reliable,  uniform,  settled  law,  controlUng  the  rights  of  parties,  as 

a  2  Kent  Com.  181. 

b  Statutes  of  1818,  ISW  and  1862,  as  to  rights  of  married  women. 

64 


OOG  HUSE.VXD   .VXD  WIFE. 

this.  It  was  the  first  relation  formed  by  man,  it  is  tlio  first  in  the 
order  of  natiu'e ;  it  is  the  most  intimate,  the  most  tender,  and 
should  possess  the  nearest  possible  equahty  of  powers  and  natural 
rights.  Reasoning  from  the  order  of  creation,  and  from  nature, 
we  find  the  man  endowed  with  superior  physical  power,  and  per- 
haps for  this  reason,  he  has  assumed,  what  in  all  countries  has 
been  recognized  as  his  right,  and  would  seem  to  be  demanded  as  his 
duty,  the  protection  of  woman  ;  and  it  is  perhaps  also  for  this 
reason,  that  it  has  been  conceded  to  him,  the  right  of  private 
restraint  over  the  wife.  The  right  to  exercise  this  restraint,  and 
to  what  extent,  are  questions  Avhicli  remain  almost  as  much  un- 
settled by  the  municipal,  as  by  the  moral  law.  This  refers,  doubt- 
less, to  the  exercise  of  physical  restraint ;  but  tliis  by  no  means 
settles  the  moral  question,  that  the  oiecessify  of  restraint,  does  not 
as  often  apply  to  the  husband  as  to  wife  ;  and  yet  in  that  case,  the 
law  recognizes  the  authority  of  no  one  to  exercise  it.  Perhaps 
tha  long  recognition  of  this  right,  as  being  in  the  husband,  by  the 
adjudications  of  courts,  and  the  necessity  for  the  existence  of  an 
acknowledged  head  of  authority  in  this  relation,  is  a  sufiicient 
ground  to  concede  the  law  to  be,  that  the  power  resides  in  the 
husband.  It  is  argued,  in  favor  of  the  right,  that  it  should  so 
reside,  that  in  case  the  wife  inclines  to  extravagant  living,  he  may 
protect  his  estate,  and  prevent  her  squandering  it.  That  if  she 
forsakes  her  duties  to  her  family,  and  gads  abovit  to  scandalize  her 
neighbors,  or  to  refoim  the  race,  he  may  bring  her  home  and  keep 
her  there.  That  if  she  bums  with  "free  love,"  he  may  protect 
his  honor,  and  exclude  her  from  all  associations  by  wliich  it  is 
endangered.  These  extreme  cases,  do  seem  to  requh'e  the  correct- 
ing, the  restraining  power,  to  exist  somewhere.  But  suppose  the 
other  case,  which  as  frequently  happens,  of  an  extravagant,  intem- 
perate, hcentious  and  spendtluift  husband  who  is  squandering  the 
living  which  ought  to  be  preserved  for  wife  and  cliildren,  who  may 
possess  like  "  free  love "  associations  and  affinities ;  who  then, 
should  possess  the  power  of  restraint ;  who  then,  will  protect  the 
honor  of  a  wife  and  children  ?  The  moral  argument  upon  which 
the  right  is  based,  is  insufficient  and  selfish,  until  it  is  demon- 
strated, that  husbands,  as  a  rule,  are  morally,  more  pure  and  per- 
fect than  their  wives. 


HUSBAND  AND  WIFE.  507 

"What  precise  amount  of  force  a  liusbancl  may  exert  in  restraint 
of  the  personal  liberty  of  his  wife  in  this  country,  has  not  been 
settled,  so  as  to  be  adopted  as  law.  Different  judges  in  the  same, 
and  in  different  states,  have  given  us  dicta  of  their  views  arisbg 
under  circumstances  pccuHar  to  the  case  in  hand,  but  faihng  to 
come  up  to  any  general  rule  ;  being  governed  in  a  greater  or  less 
degree,  it  would  seem,  by  the  common  law  of  England,  from  which 
country,  much  of  our  common  law  was  borrowed.  Even  Blackstone 
speaks  with  doubt  as  to  the  modern  authorities  on  this  sul)ject ; 
but  he  informs  us,  a  that  by  the  "  old  law,"  the  husband  might 
give  his  wife  moderate  coiTCctiou,  for,  as  he  is  to  answer  for  her 
misbehavior,  the  law  thought  it  reasonable  to  entrust  him  with  the 
power  of  restraining  her  by  domestic  chastisement,  in  the  same 
moderation  that  a  man  is  allowed  to  correct  his  apprentices  or 
children,  for  whom  the  master  or  parent  is  also  liable  in  some  cases 
to  answer.  But  this  power  of  correction,  was  confined  witliin 
reasonable  boimds.  The  civil  law,  he  informs  us,  gave  the  hus- 
band the  same  or  larger  authorit}-,  over  his  wife.  But  with  us,  he 
says,  in  the  poUter  reign  of  Charles  the  second,  this  power  of  cor- 
rection began  to  be  doubted ;  and  a  wife  may  now  have  security 
of  the  peace  against  her  husband ;  or  in  return,  the  husbana 
against  the  wife.  Yet  the  lower  rank  of  people  (he  says)  who  were 
always  fond  of  the  old  common  law,  still  claim  and  exert  their 
ancient  privilege ;  and  the  courts  of  law  wiU  still  pennit  a  husband 
to  restrain  a  wife  of  her  liberty  in  a  case  of  any  gross  misbehavior. 

Bishop,  in  his  work  on  marriage  and  divorce,  h  says  that  the 
right  to  chastise  a  wife  is  repudiated  by  the  law  of  Ireland  and 
Scotland,  and  has  met  with  but  little  favor  in  the  United  States. 
In  New  Jersey,  Chief  Justice  Green  said,  c  "  There  was  a  time  in 
the  history  of  the  common  law,  in  which  a  man  was  allowed  to  beat 
his  wife  with  a  rod  no  larger  than  his  thumb  ;  and  at  a  time  still 
earUer  than  that,  when  he  was  allowed  to  beat  his  wife  at  discre- 
tion, and  turn  her  out  of  doors."  This  decision,  sorefeiTcd  to  as 
to  the  size  of  the  rod,  is  said  to  have  been  made  by  a  celebrated 
English  Judge.  In  his  defence,  called  for  l\y  pubhc  opinion,  it 
^  was  found  that  he  refeiTed  to  authority  foimd  in  the  day  of  Brac- 

a  1  Com.  UL  b  Sec.  iS5. 

c  State  V.  Baruhard,  2  West.  Law  Jour.  301. 


508  HUSBAND  AND  WIFE. 

ton,  and  as  to  that  ancient  case,  tradition  reports,  that  the  women 
who  hved  in  the  neighborhood  of  the  Judge  who  pronounced 
it,  raised  a  meeting,  and  in  mass,  for  his  disregard  of  the  proprie- 
ties of  their  characters  and  conditions,  seized  him  by  force,  and 
plunged  him  into  a  horse  pond.  "  But  in  this  enlightened  christian 
age  and  country,  no  man  has  a  right  to  strike  his  wife  at  all.  If 
she  interferes  with  a  proper  discipline  in  his  domestic  relations,  he 
may  restrain  her ;  but  the  law  will  not  justify  him  in  striking  a 
blow."  In  this  state,  Judge  Walworth,  at  nisi  prius,  held,  that  "  a 
husband  had  no  right  to  beat  his  wife,  or  to  mflict  punishment 
upon  her.  He  may  defend  himself  against  her  ;  he  may  restrain 
her  from  acts  of  violence  towards  himself  or  others,  for  he  is  ac- 
countable for  her  acts  which  injure  others."  Tliis  is  a  more  sen- 
sible basis  than  that  of  a  moral  one.  Chancellor  Kent  laid  down 
the  rule  thus,  a  "  The  husband  may  be  bound  to  keep  the  peace 
as  aaainst  his  wife  ;  and  for  any  unreasonable  and  improper  con- 
finement,  by  him  she  may  be  entitled  to  relief  upon  habeas  corpus. 
But  as  the  husband  is  the  guardian  of  the  wife,  and  bound  to  pro- 
tect and  maintain  her,  the  law  has  given  him  a  reasonable  supe- 
riority and  control  over  her  person,  and  he  may  even  put  gentle 
restraint  upon  her  liberty,  if  her  conduct  be  such  as  to  require  it, 
unless  he  renounces  that  control  by  articles  of  separation,  or  it  be 
taken  from  him  by  a  qualified  divorce." 

"  But  in  exercising  whatever  rights  the  husband  may  have  by 
way  of  restramt  of  the  liberty  of  the  wife,  he  may  not  lock  her  up 
as  a  close  prisoner  ;  he  may  not  deprive  her  of  the  benefit  of  light 
and  air  and  exercise;  nor  of  the  society  of  himself,  or  the  family; 
nor  may  he  exclude  her  entirely  from  all  intercourse  with  her 
neighbors,  where  there  is  no  ground  to  apprehend  any  injurious 
consequences."  h  Should  the  wife  elope,  or  be  forcibly  carried 
away,  he  doubtless  might  retake  her,  provided  the  act  of  recaption 
was  not  done  riotously,  or  in  a  manner  to  occasion  a  breach  of  the 
peace.  "  Cruelty  or  other  conduct  on  the  part  of  the  husband,  con- 
stituting a  ground  for  divorce,  gives  authority  to  the  wife  to  leave 
the  husband,  and  he  cannot  retake  her,  whether  she  appHes  for  a 
divorce  or  not.     And  it  has  been  held,  that  he  cannot  retake  her 

a  2  CoDi.  181. 

h  Hard  on  Limitation  of  Liberty,  34. 


FATHER   AND   CHILD.  509 

if  she  leaves  him  to  oljtaiu  a  divorce,  honestly  believing  tliat  his 
treatment  alibrdecl  sutlicient  gi'ound  for  divorce,  although  it  shonld 
appear  that  the  facts  did  not  Avarrant  the  belief. 

2.  "  The  father  of  an  infant,  being  obliged  by  law  to  support 
his  child,  has  a  correspoudmg  right  to  control  his  actions,  and 
employ  his  services  during  continuance  of  legal  infancy.  The 
child  may  be  emancipated  from  this  control  before  commg  of  age, 
either  by  the  express  assent  of  the  father,  or  by  being  turned  away 
from  his  father's  home,  and  left  to  care  for  himself ;  though  in 
neither  case,  woidd  the  father  be  released  from  an  obhgation  which 
rests  upon  him  to  prevent  the  child  becoming  a  pul)lic  charge ; 
and  Avhich  the  state  may  enforce  Avhenever  necessary.  The  mother, 
during  the  father's  hfe,  has  a  power  of  control  subordinate  to  his ; 
but  on  his  death,  or  conviction  and  sentence  to  imprisonment  for 
felony,  she  succeeds  to  the  relative  rights  which  the  father  before 
possessed."  a 

"  It  is  in  consequence  of  the  obligation  of  the  father  to  provide 
for  the  maintenance,  and  in  some  qualified  degree,  for  the  educa- 
tion of  his  infant  children,"  says  Chancellor  Kent,  h  "  that  he  is 
entitled  to  the  custodij  of  fhcir  persons,  and  to  the  value  of  their 
labor  and  services.  There  can  be  no  doubt  that  this  right  in  the 
father  is  perfect  while  the  child  is  under  the  age  of  fourteen  years. 
But  as  the  father's  guardianship  continues  until  the  child  has  ar- 
rived to  full  age,  and  as  he  is  entitled  by  statute  to  constitute  a 
testamentary  guardian  of  the  person  and  estate  of  his  children 
until  the  age  of  twenty-one,  the  inference  woidd  seem  to  be  that 
he  was  in  contemplation  of  law,  entitled  to  the  custody  of  the  'per- 
sons, and  to  the  services  and  labor  of  his  children  during  their 
minority."  But  in  this  state,  it  has  been  held,  that  this  right  of  the 
father,  is  not  an  absolute  and  unalienable  right.  As  a  general 
rule  he  has  the  natural  right.  Like  other  rights,  it  may  bo  forfeited 
by  his  misconduct,  and  under  circumstances  requiring  it,  the  courts, 
will  control  this  exercise  of  parental  power,  and  may  award  the 
care  and  custody  of  minor  children  to  the  mother,  or  others,  c 
The  father  may  obtain  the  custody  of  his  children  by  the  writ  of 

a  People  v.  Humphries.  21  Barb.  521.  b  2  Com.  193. 

c  People  V.  Chegary,  18  Wend.  637;  People  v.  — ,  10  Wcml.  16;  People  v.  Mer- 
cer, 3  Hill.  399;    People  v.  Olmstead,  27  Barb.  9. 


510  FATHER  AND   CHILD. 

liahnis  covpus,  ■s\lieii  they  are  improperly  detained  from  liim;  but 
the  courts,  both  of  h\w  and  equity,  will  investigate  the  ckcumstan- 
ces,  and  act  according  to  soimd  discretion,  and  will  not  alwaj^s  of 
course,  interfere  upon /<a?.c«s  corpus,  and  take  a  child,  though  under 
fourteen  years  of  age  from  the  possession  of  a  third  person,  and 
deliver  it  over  to  the  father  against  the  will  of  the  child.  They 
will  consult  the  inclination  of  the  child,  even  if  an  infant,  if  it  be 
of  a  sufficiently  mature  age  to  judge  for  itself,  and  even  control 
the  right  of  the  father  to  the  possession  and  education  of  his  child, 
when  the  nature  of  the  case  appears  to  warrant  it." 

•'  This  power  over  the  person  of  the  child  ceases  on  its  anival 
at  the  age  of  majority,  which  in  this  state  is  the  age  of  twenty-one. 
This  rjglit  results  fi-om  the  corresponding  dut}^,  to  maintain  and 
educato  the  child,  and  in  the  necessary  support  of  that  authority, 
he  should  possess  the  right  to  the  exercise  of  such  discipline,  as 
may  be  requisite  for  the  discharge  of  that  sacred  trust.  This  is 
the  true  foundation  of  the  parental  power.  On  the  death  of  the 
father,  as  a  general  rule,  the  mother  is  entitled  to  the  custody  of 
the  infant  children,  inasmuch  as  they  are  their  natural  protectors 
for  maintenance  and  education."  a  These  rights  are  confen-ed  for 
important  ends,  chiefly  affecting  the  welfare  of  the  child.  When 
neccessary  to  the  proper  discharge  of  parental  duty,  the  parent 
may  resort  to  corporal  discipline.  He  may,  and  should,  in  proper 
cases,  inflict  moderate  chastisement.  "  Correct  thy  son  and  he 
shall  give  thee  rest ;  yea,  he  shall  give  delight  to  thy  soul."  h 
"  Foolishness  is  bound  up  in  the  heart  of  a  child,  but  the  rod  of 
correction  shall  drive  it  from  him."  "  Chastise  thy  son  while  there 
is  hope,  and  let  not  thy  soul  spare  for  his  crying."  This  was  the 
language  of  the  wise  man.  "  The  parent  may  impose  such  tem- 
porary confinement  as  may  be  necessary  to  secm'e  obedience  to 
his  reasonable  commands,  so  that  it  is  not  prejudicial  to  the  life, 
limb  or  health  of  the  child."  c 

"  The  Eoman  law  anciently  gave  the  father  the  power  over  the 
life  and  death  of  his  children,  upon  the  principle,  that  he  who  gave 
had  also  the  power  of  taking  away  ;  but  the  rigor  of  the  law  was 
softened  by  later  constitutions.     The  power  of  a  parent  by  the 

a  2  Kent  Com.  203.  h  Proverbs,  29-17;  Id.  22-15;  Id.  19-18. 

c  Hurd  on  Personal  Liberty,  43. 


FATHER  AND   CHILD.  511 

law  of  Engliind  is  much  more  moderate  ;  but  still  suflicieut  to  keep 
the  child  in  order  and  obedience.  He  may  lawfully  coiTect  his 
child  being  under  age  in  a  reasonable  manner ;  for  this  is  for  the 
benefit  of  his  education."  a  Our  own  common  law  has  not  been 
materially  held  to  be  diffurunt  from  this.  The  law  prescribes  no 
form  of  parental  disciphne.  It  merely  designates  the  purpose  for 
which  it  may  be  employed,  and  confers  adecjuatc  power  for  its 
administration,  yet  -while  it  authorizes  chastisement  or  confine- 
ment, it  exacts  moderation,  and  punishes  any  excess  amounting  to 
ciTielty,  as  a  crime. 

The  exercise  of  this  power  must  be  in  a  great  measure  discre- 
tionary. He  may  so  chastise  his  child  as  to  be  liable  in  an  action 
by  the  child  against  him  for  the  battery.  The  child  has  rights 
which  the  law  will  protect  him  in  against  the  brutality  of  a  bar- 
barous parent.  It  is  a  point  sometimes  of  great  ditticulty  to  deter- 
mine with  exact  precision,  Avlien  a  parent  has  exceeded  the  bounds 
of  moderation.  Minds  will  difier ;  correction  which  by  some  will 
be  considered  as  unreasonable,  will  be  viewed  by  others  as  perfectly 
reasonable.  What  may  be  considered  by  one  as  a  trifling  folly, 
and  for  which  none,  or  very  trifling  correction  should  be  applied, 
will,  by  another,  be  considered  as  an  offence  that  requires  very  severe 
treatment.  The  parent  is  bomid  to  correct  the  child  so  as  to  pre- 
vent him  from  becoming  the  victim  of  vicious  habits,  and  thereby 
proving  a  nuisance  to  the  community. 

The  true  gi'ound  upon  which  this  ought  to  be  placed,  is,  that 
the  parent  ought  to  be  considered  as  acting  in  a  judicial  capacity 
when  he  corrects  ;  and  of  course  not  hable  for  errors  of  opinion. 
And  although  the  punishment  should  appear  to  bo  unreasonably 
severe,  and  in  no  measure  proportioned  to  the  offence ;  yet  if  it 
should  also  appear,  that  the  parent  acted  conscientiously,  and  from 
motives  of  duty,  no  judgment  should  be  given  against  him. 

But  when  the  punishment  is  thus  unreasonable,  and  it  appears 
that  the  parent  acted  malo  animo  from  wicked  motives,  under  the 
influence  of  an  unsocial  heart,  he  ought  to  be  Hable  to  damages. 
"For  en-or  of  opinion,  he  ought  to  bo  excused ;  but  for  mahce  of 
heart,  he  should  not  be  shielded  from  the  just  claims  of  the  child. 
Whether  there  was  malice  may  be  collected  from  the  circumstan- 

a  Black,  Com.  452. 


512  FATHER  AND   CHILD. 

ces  attending  the  punishment.  The  instrament  used,  the  time 
when,  the  place  where,  and  the  temper  of  heart  exhibited  at  the 
time,  may  all  unite  in  demonstrating  what  the  motives  were,  which 
uiliuenced  the  parent,  a 

Among  the  methods  of  inflicting  chastisement,  to  enforce  obe- 
dience to  reasonable  commands,  is,  doubtless,  that  of  confinement 
of  the  cliild,  but  this  Hke  the  other,  must  be  exercised  in  modera- 
tion. The  life  of  the  child  must  not  be  endangered,  nor  its  health 
sacrificed  or  um-easonably  exposed ;  nor  its  limbs  paralyzed  or 
injured  ;  nor  can  it  be  imposed  upon  the  child  to  its  prejudice, 
from  sheer  malice  of  heart. 

This  right  of  custody  and  control,  as  has  been  said,  ceases  at 
the  arrival  of  the  child  at  majority,  except  perhaps  in  the  case 
of  ichocy  or  other  grievous  disability  of  the  child  to  take  care  of 
itself.  In  such  cases  it  becomes  the  duty  of  the  state  authorities 
to  provide,  h 

This  relation  may  be  severed  before  the  child  anives  at  majority 
by  the  express  consent  of  the  parent,  which  is  called  emancipation, 
or  by  the  cruel  conduct  of  the  parent,  in  sending  it  away,  or  in 
omitting  to  provide  for  it  the  necessaries  of  life  by  repeated 
acts  of  barbarity  and  violence,  c  or  other  treatment  which  would 
render  a  residence  with  the  parent  intolerable,  d  But  even  such 
conduct,  by  no  means  absolves  a  parent  from  his  obligation  to 
maintain  or  support-  his  child ;  he  is  still  Hable  at  common  law  for 
the  necessary  support  furnished  to  his  child,  even  by  a  stranger. 
"  Tliis  relation  may  also  be  severed  by  the  courts  of  justice,  when, 
in  their  discretion  the  morals,  or  safety,  or  the  interests  of  the 
cliild  strongly  requires  it,  and  may  give  then-  custody  elsewhere,  e 

Mothers,  during  coverture,  also  exercise  authority  over  their 
children  ;  but  in  a  legal  point  of  view,  it  is  said,  they  are  consid- 
ered in  this  respect  as  only  agents  for  their  husbands,  and  have 
no  legal  authority  of  their  own  :/  howsoever  this  may  be,  techni- 
cally, where  both  parents  reside  together,  the  general  custody  of 

a  Reevos'  Domestic  Relations,  288. 

?>  Upton  V.  Northbridge,  15  Mass.  237;  Orford  v.  Ramsey,  3  N.  H.  R.  331. 

c  2  Kent.  Com.  193. 

d  Sternburg  v.  Bution,  7  Watts  &  Searg.  8G4. 

e  2  Kent.  Com.  205. 

/  Reeves  on  Domestic  Relations,  295. 


GUARDUN  AND   WARD.  513 

the  children  i^^  doubtless,  considered  to  be  in  him  as  the  head  and 
governor  of  the  family;  but  l)y  the  universal  law  of  imphcation, 
and  by  the  implied  consent  of  both,  the  mother,  has  a  share  in 
that  custody  and  control ;  if  not  independently,  and  of  equal 
extent  with  the  father  ;  yet  il"  he  does  not  absolutely  forbid  it,  she 
is  entitled  to  an  active  part  in  the  discipline  and  correction  of  the 
children,  and  in  his  absence,  to  exercise  absolute  control,  to  the 
same  extent  as  the  father.  She  is  entitled  to  the  exercise  of  it  to 
this  extent,  to  secure  to  her  that  reverence  and  respect,  that  is 
due  from  children  to  a  parent. 

On  the  death  of  the  father,  the  mother  remaining  at  the  head 
of  the  family,  succeeds  to  the  custody,  discipline  and  government 
of  the  children,  and  to  all  the  rights  possessed  by  the  father  in  his 
lifetime,  and  doubtless  to  the  same  succession  of  power  in  case  of 
the  civil  death  of  the  father,  as  vrliere  he  is  convicted  of  felony 
and  confined  in  the  state  prison. 

3.  "  The  guardian  has  a  power  of  control  over  his  ward,  corres- 
ponding in  the  main,  with  that  which  the  father  has  over  liis  child, 
though  in  some  respects  more  restricted,  while  in  others  it  is 
broader.  The  appointment  of  guardian  when  made  by  the  courts, 
is  of  local  force  only,  being  confined  to  the  state  in  which  it  is 
made,  and  the  guardian  would  have  no  power  to  change  the  domi- 
cile of  the  ward  to  another  state  or  country.  But  the  appointment 
commonly  has  some  reference  to  the  possession  of  the  property  by 
the  ward,  and  over  this  property  the  guardian  possesses  a  power 
of  control  wliicli  is  not  possessed  by  the  father  over  the  property 
owned  by  the  child. 

As  our  discussion  of  this  relation,  in  this  work,  is  confined  to 
the  power  of  restraint  of  personal  liberty,  we  shall  only  examine 
it  iu  that  view.  Chancellor  Kent  informs  us,  that  the  relation  of 
guardian  and  ward,  is  nearly  allied  to  that  of  parent  and  child,  a 
but  throughout  his  whole  lecture,  he  says  not  a  word  on  the  sub- 
ject of  the  guardians  right  to  discipline,  conti'ol,  to  administer 
coiporal  correction,  or  to  exercise  any  power  of  restraint  over  the 
personal  liberty  of  the  ward.  In  the  state  of  New  Hampshire  it 
Avas  expressly  said  by  Woodbury  J.,  h  speaking  of  the  rif^lits  of  a 

«  2  Com.  218. 

b  Hancock  v.  Hamstead,  1  N.  H.  265. 
65 


514  GUARDIAN  AND  WARD. 

guardian  appointed  upon  the  death  of  parents,  "  True  he  had  o 
guardian,  but  a  guardian  though  in  loco  'parentis,  as  to  a  few  pur- 
poses, has  no  absohite  control  oirr  the  2:>crson,  or  ser^■ices  of  the 
ward,  unless  the  ward  be  a  lunatic."  Mr.  Eeeves,  who  has  treated 
this  subject  somewhat  at  large,  and  speaks  of  the  various  kmds  oi 
guardians  and  wards;  guardians  of  the  power,  as  well  asguardiann 
of  the  estate,  is  entirely  silent  on  the  subject  of  the  power  of  any 
land  of  guardian  over  the  personal  liberty  of  the  ward.  Black- 
stone,  who  has  written  a  full  chapter  on  the  several  divisions  and 
classes  of  persons  constituting  this  relation,  omits  any  allusion  to 
the  control  of  the  guardian  over  the  personal  liberty  of  the  ward, 
unless  it  may  be  implied  from  this  :  "  The  power  and  reciprocal 
duty  of  a  guardian  and  ward  are  the  same  pro  tempore  as  that  of 
father  and  child,  and  therefore  I  shall  not  repeat  them,"  a  In 
Massachusetts  it  was  held  that  the  guardian  had  no  power  to  bind 
the  person  of  his  ward,  h 

The  absence  of  expression  of  opinion  by  elementary  writers  on 
the  subject  of  this  power  of  restraint  of  the  guardian  over  the 
person  and  liberty  of  his  ward,  and  the  remarkable  absence  of 
cases  in  which  this  question  has  been  passed  upon  by  the  courts 
under  the  writ  of  laheas  corpus  or  otherwise,  makes  it  hazardous 
to  express  an  opinion,  as  to  the  power  of  the  guardian  in  this  re- 
spect; or,  if  he  possesses  the  poAver,  to  say  where,  and  to  what 
extent,  and  under  what  circumstances  he  may  exert  it.  The  relation 
of  guardian,  has  not  the  same  basis  to  support  the  power  of  re- 
straint and  discipline,  as  that  of  the  parent.  The  parent  has  first, 
the  natural  law  of  power.  By  begetting  the  child,  he  has  entered 
into  an  implied  and  voluntary  obhgation  to  endeavor,  as  far  as  in 
him  lies,  that  the.  life  lie  has  bestowed  shall  be  supported  and 
preserved,  and  thus  the  child  has  a  perfect  and  natural  right  to 
receive  maintenance  and  support  from  the  parent,  c  This  gives 
to  the  parent  the  right  to  such  authority,  and  to  exercise  such  discip- 
line, as  may  be  requisite  for  the  discharge  of  the  sacred  trust.  This 
is  the  true  foundation  of  parental  power,  d  The  guardian  has  no 
such  natural  relation ;  and  he  is  under  no  legal  obhgation  what- 
ever, to  maintain  the  ward  from  his  own  funds,  nor  at  common 

a  1  Black.  Com.  4C2.  h  Foster  v.  Fiiller,  0  Mass.  58. 

c  4  Black.  Com.  447.  d  2  Kent.  Com.  203. 


GUARDIAN  AND  WARD.  515 

law,  can  he  bind  liim  out  to  service.  He  can  only  do  tliis  by  some 
express  statutory  provision.  Our  statutes  define  the  powers  of 
the  several  kinds  of  guardians  known  to  our  law,  but  by  none  of 
them  is  conferred  the  jjower  of  the  personal  restraint  of  liberty. 
If  it  exists,  it  exists  only  at  common  law.  Blackstonc  indeed 
does  say,  that  in  England,  the  guardian  performs  the  ofhcc,  both 
of  tutor  and  iuntlnr  of  the  Roman  law  ;  the  former  of  which,  had 
the  charge  of  the  maintenance  and  education  of  the  minor,  the 
latter  the  care  of  his  fortune ;  or,  (as  he  says,)  according  to  the 
language  of  the  Court  of  Chancery,  the  tutor  was  the  committee 
of  the  person,  the  curator  the  committee  of  the  estate ;  but  this 
ofiice,  he  says,  is  always  united  in  our  laAV,  in  regard  to  minors,  a 
In  looking  at  the  civil  huv,  we  find  the  tutor,  defined  to  be,  a  guar- 
dian who  has  the  charge  of  persons  who  are  under  the  age  of  pub- 
erty. Tutores,  latin,  from  furri  to  protect ;  as  the  law  hath  it, 
"  to  protect,  or  defend  him  during  the  age,  in  which  he  cannot 
protect  himself."  b  Though  in  the  civil  law,  this  guardianship  to 
protect  and  defend  until  the  ago  of  puberty,  and  in  the  English 
law,  a  combination  of  duties  till  majority;  both  systems  are  silent 
on  the  subject  of  the  power  of  restraint  of  liberty.  To  protect 
and  defend  the  person,  is  not  identical  with  the  power  to  control, 
to  discipline,  and  restrain. 

Mr.  Hurd,  a  modern  v/riter  on  the  laws  of  the  light  of  personal 
Uberty,  however,  lays  it  down  thus :  c  "  When  the  ward  is  within 
the  ago  of  discretion,"  (which  ho  assumes  to  be  the  age,  when  by 
law,  they  may  choose  their  own  guardians,)  "  it  is  plain  enough, 
that  the  guardian  possesses  the  riglit,  and  that  it  is  clearly  his 
duty,  on  proper  occasions,  in  a  reasonable  manner,  to  connect  his 
ward  for  misbehavior,  with  the  rod,  if  in  his  judgment  that  mode 
of  correction  be  necessary.  And  especially  is  this  true,  where  the 
ward  resides  in  the  family  of  his  guardian.  In  such  a  case,  it  is 
important  to  allow  the  guardian  to  em}>loy  the  usual  means  ol 
discipline,  not  only  for  the  benefit  of  the  ward,  but  to  enable  him 
to  execute  his  reasonable  plan  of  family  government.  For  uc 
man  fit  to  bo  entrusted  with  the  training  up  of  a  child,  would 
take  the  infant  stranger  under  his  roof  to  educate,  with  any  privi- 

a  1  Black.  Com.  379.  b  lust.  1,  13,  1. 

c  Hurd  ou  Personftl  Liberty,  51-52 . 


51G  JLVSTER  AND  ATrEENTICE. 

lege  to  misbeliave,  or  to  escape  the  punisliment  usually  inflicted 
on  liis  own  childi'en  for  misconduct.  It  would  not  be  safe  perhaps, 
to  deny  that  in  a  case  of  flagrant  misbehavior,  the  guardian  pos- 
sesses the  right  to  chastise  his  ward,  when  of  somewhat  riper 
years.  But  when  by  reason  of  the  advanced  age  of  the  ward,  thif? 
mode  of  correction  becomes  deeply  humiliating,  as  well  as  painful 
it  is  safe,  perhaps,  to  say,  that  the  right  cannot  be  lawfully  exer- 
cised unless  it  appears  that  there  was  probable  cause  for  it,  and 
that  all  the  other  means  of  coiTection,  less  severe  were  inadequate." 
These  views,  though  no  authority  is  cited  to  sustain  them,  stand 
on  a  basis  of  reason  and  good  practical  common  sense  ;  and  they 
are,  no  doubt,  the  practice  to  some  extent  in  the  relation  of 
guardian  and  ward. 

4.  "  The  relation  of  master  and  apprentice  is  founded  on  a  con- 
tract between  the  two  generally,  with  the  consent  of  the  parent,  or 
party  standing  in  loco  parentis,  to  the  latter,  by  which  the  master 
is  to  teach  the  apprentice  some  specified  trade  or  means  of  living. 
This  relation  is  also  statutory  and  local,  and  for  power  to  control 
or  punish  against  the  opposition  of  the  apprentice,  the  statute 
must  be  examined." 

This  relation  is  a  matter  of  civil  contract,  and  is  generally  in  its 
forms  and  creation  regulated  by  the  local  statutes  of  the  several 
states,  as  to  the  age,  time  of  service,  the  employment,  trade  or 
occupation,  to  be  pursued,  and  the  persons  who  are  authorized  to 
bind  the  child  apprentice  to  the  service  of  a  master.  All  these 
being  matters  of  ci^^l  contract,  do  not  come  within  the  scope  of 
this  work.  "  The  relation  of  master  and  apprentice,  says  Chan- 
cellor Kent,  a  "  was  in  its  original  spirit  and  policy  and  an  intimate 
interesting  connection,  calculated  to  give  the  apprentice  a  thorough 
trade,  education,  and,  to  advance  the  mechanic  arts  in  skill,  neat- 
ness and  fidelity  of  workmanship,  as  well  as  in  the  facility  and 
utility  of  their  application.  The  relationship,  if  duly  cultivated 
under  a  just  sense  of  the  responsibility  attached  to  it,  and  with  the 
moral  teachings  ^^  liich  belong  to  it,  will  produce  parental  care, 
vigilance,  and  kindness  on  the  part  of  the  master,  and  a  steady, 
diligent,  faithful  and  reverential  disposition  and  conduct  on  the 
part  of  the  apprentice." 

a  2  Com.  2G3. 


MASTER  AND   AmiENTICE.  517 

The  temptations  to  iiuposition  and  abuse  to  which  tliis  contract 
is  liable,  have  renderetl  legislative  interposition  especially  necessary. 
While  these  regulations  upon  the  one  hand  protect  the  master 
from  the  interference  of  other  persons  ■with  the  duty  the  apprentice 
owes  to  him,  it  also  protects  the  apprentice  against  misconduct 
and  abuse  from  his  master ;  by  a  foif eiture  of  the  claim  of  the 
master  upon  his  services,  to  be  adjudged  by  two  justices  of  the 
peace  upon  complaint,  a  So  on  the  other  hand,  if  the  apprentice 
misbehave,  by  refusing  to  serve  according  to  the  terms  of  his  inden- 
ture, and  the  law  in  that  regard,  lie  may,  u})on  the  complaint  of 
the  master  to  certain  officers  named  in  the  statute,  and  if  he  per- 
sists in  such  refusal  to  obey,  etc.,  be  committed  to  a  house 
of  correction,  bridewell,  or  common  jail  of  the  city  or  county,  there 
to  remain  until  he  will  consent  to  serve  according  to  law ;  h  and  in 
case  he  shall  wilfully  absent  himseK  from  such  sen-ice  without 
leave  of  the  master,  he  may  be  compelled  in  like  manner  to  sen-e 
double  the  time  of  such  absence,  even  after  his  majority,  not 
exceeding  three  years  after  the  end  of  the  original  term,  c  Black- 
stone  says,  (/  that  a  master  may  correct  his  apprentice  for  negli- 
gence or  other  misbehavior,  so  it  be  done  with  moderation.  And 
so  it  seems  it  was  laid  down  by  Hawkms ;  e  and  in  the  reign  of 
Charles  I,  it  was  declared  of  an  apprentice,  "it  he  misbehave  him- 
self, the  master  may  correct  him  in  his  service,  or  complain  to  a 
justice  of  the  peace  to  have  him  punished  according  to  the  stat- 
ute ;"/  but  in  the  thirty-fifth  year  of  the  reign  of  Charles  II,  Lord 
Saunders,  before  whom  a  trial  was  had  against  one  Keller  for 
immoderate  beating  of  Brotherwaite,  an  apprentice ;  said  the  ap- 
prentice might  be  discharged  by  justices  of  the  peace  ;  but  upon 
the  authority  of  Lord  Hale,  he  still  held  the  defendant  responsible, 
and  he  was  convicted.  (/  Tliis  right  of  moderate  correction  by  the 
master,  in  case  of  an  offending  apprentice,  seems  to  be  adopted  as 
common  law  in  this  country,  though  this  power  does  not  arise  out 
of  the  statute  provisions,  h 

a  2  Eev.  Stat.  159,  §  30. 

h  Id.  §  29. 

c  Id.  §  28.  d  1  Com.  428. 

e  1  Hawk.  P.  C.  130.  /  Cro.  Car.  179,  Gilbert  v.  Flctcbcr. 

g  Dominas,  Rex  v.  Keller,  2  Show.  289. 

A  2  Kent  Com.  264;  Commonwealth  v.  Baird,  1  Ashmead  Penn.  K.  267. 


518  MASTER  AND   SERVANT. 

5.  The  power  of  the  master  over  the  servant  he  employs.  As 
I  do  not  see  in  this  relation,  any  power  that  the  master  can  right- 
fully exert  over  the  personal  liberty  of  the  servant,  I  have  not 
copied  the  views  of  the  author,  or  discussed  at  much  length,  this 
relation. 

A  few  unsupported  dicta  may  be  found  in  the  old  English  books 
ap})arently  justifying  moderate  chastisement  of  a  hired  sers-ant  by 
the  master  or  employer,  tor  derehction  of  duty,  a  but  no  respec- 
table modern  authority  can  be  found,  bold  enough  to  assert  that 
such  a  power  exists  even  in  England.  And  in  America,  where 
equality  of  rights  of  its  citizens  is  announced  as  the  basis  of  sov- 
ereign authority,  such  an  assertion  would  be  too  much  in  conflict 
with  the  genius  and  spirit  of  our  system  of  government,  and  with 
the  acknowledged  rights  of  equality  of  citizenship  and  freedom,  to 
exist  for  a  single  moment  as  law.  It  may  be  that  there  is  an  ex- 
ceptional case ;  as  for  instance,  wliere  a  parent  should  contract 
Avitli  a  master,  the  service  of  a  minor  child,  and  expressly  delegate 
to  the  master  the  parental  power  of  chastisement,  or  confinement 
by  way  of  correction  for  dereliction  of  duty  ;  but  where  the  ser- 
vant has  arrived  at  his  majority,  he  has  become  an  emancipated 
citizen  of  the  government ;  with  unalienable  rights  to  fi-eedom,  to 
liberty,  and  to  an  equality  of  rights  before  the  law,  and  in  which, 
he  has  no  superior ;  and  over  him,  no  master  can  exert  the  humi- 
liating and  tyranous  power  of  chastisement  and  correction. 

G.  "  The  relation  of  teacher  and  scholar  places  the  former  more 
nearly  in  the  place  of  the  parent  than  either  of  the  two  preceeding 
relations  places  the  master.  Yvliile  the  pupil  is  under  his  care,  he  has 
the  right  to  enforce  obedience  to  his  commands,  lawfully  given  in 
his  capacity  as  teacher,  even  to  the  extent  of  bodily  chastisement 
or  confinement.  And  in  deciding  questions  of  disciphne,  he  acts 
judicially,  and  is  not  to  be  made  liable  either  civilly  or  criminally, 
unless  he  has  acted  with  express  mahce,  or  been  guilty  of  such 
excess  in  punishment  that  malice  nnist  be  implied.  All  presump- 
tions are  in  favor  of  the  correctness  of  his  action." 

Technically,  where  there  is  no  special  understanding  between 
parent  and  teacher,  this  is  the  implied  legal  relation  between  tea- 

a  3  Salt.  47  ;  1  Hawk,  P.  c.  c.  29,  §  5  ;  4  Buvas  lust.  119  :  Bac.  Abr.  N.  Master 
and  Servant. 


TEACHER  AND   TUriL.  510 

chcr  and  scholar.  Modern  theories  do  not  accord  to  this  rule  all 
the  force  of  law,  as  thus  laid  down.  Our  duty,  however,  is  not  to 
discuss  the  wisdom  of  the  different  theories. 

It  is  doubtless  the  law,  and  should  be,  that  in  the  public  school, 
for  the  time  beinj^,  that  is,  duiing  school  hours,  the  schoolmaster 
is  uivested  with  all  the  authority  of  a  parent ;  he  ought  to  be  pos- 
sessed of  the  power  to  make  rules  for  the  regulation  of  the  conduct ; 
to  direct  the  studies ;  t(^  order  the  application  ;  as  to  the  manner  of 
recitations,  ]'eading,  writing  or  other  exercises ;  and  to  keep  order 
and  silence ;  prevent  disturbances ;  and  rc;quire  obedience  to  all 
his  reasonable  rules ;  obedience  to  all  such  projjcr  rules,  and  known 
requirements ;  may  be  enforced  by  reasonable  and  moderate  correc- 
tion, as  an  established  and  necessary  resort,  to  this  end ;  and  tliis 
correction,  may  doubtless  be,  by  temporary  confinement,  if,  in  the 
judgment  of  the  teacher,  that  kind  of  chastisement  is  most  effective 
in  producing  obedience  to  rules,  or,  in  securing  diligence  and  apph- 
cation  to  studies,  or  as  a  punishment  for  delinquencies.  This  power 
of  the  teacher  for  the  time,  is  analogous  to  that  which  belongs  to 
parents ;  and  the  authority  of  the  teacher  is  regarded  as  a  delega- 
tion of  parental  authority.  Indeed  the  authority  is  supposed  to 
proceed  from  a  delegation  of  the  parent;  it  is  implied  from  tlie 
very  necessity  of  the  cast;,  and  need  not  be  conveyed  by  express 
agreement.  Blackstone  says,  "  that  by  such  delegation  to  the  tutor 
or  schoolmaster  of  the  child,  the  tutor  or  schoolmaster  is  then  in 
loco  iKi.rcntis,  and  has  such  a  portion  of  the  power  of  the  parent 
committed  to  his  charge,  viz.,  that  of  restraint  and  correction,  as 
may  be  necessary  to  answer  the  purposes  for  wliich  he  is  em- 
ployed." a  And  Chancellor  Kent  was  of  the  same  opinion,  h  that 
he  may  inflict  moderate  and  reasonable  chastisement,  and  lie  refers 
with  approbation  to  a  case  decided  in  North  Carolina,  v  in  which 
the  Supreme  Court  of  that  state  held  the  same  rule.  On  a  refer- 
ence to  that  case,  we  find  the  Supreme  Court,  among  other  things 
said :  "  One  of  the  most  sacred  duties  of  parents  is,  to  train  up 
and  qualify  the  cliildren  for  becoming  useful  and  virtuous  members 
of  society.  This  duty  cannot  be  effectually  performed,  without 
the  ability  to  command  obedience ;  to  control  stubbornness ;  to 

a  1  Black.  Com.  453.  h  2  Kent.  Com.  205.  Note. 

c  State  V.  Pendergrass,  2  Dev.  and  Batah. 


520  SCHOOLMASTER  AND  PUPIL. 

quicken  diligence  ;  to  reform  bad  habits ;  and  it  enable  him 
to  exercise  tliis  salutary  swa}-,  he  is  aimed  with  the  power  to  ad- 
minister moderate  correction  when  he  shall  beheve  it  to  be  just 
and  necessaiy.  The  teacher  is  the  substitute  of  the  parent ;  is 
charged  in  part  with  the  performance  of  his  duties,  and  in  the  ex- 
ercise of  these  delegated  duties,  is  invested  with  his  power.  The 
]aw  has  not  undertaken  to  prescribe  stated  punishments  for  partic- 
ular ollences,  but  has  contented  itself  with  the  general  grant  of 
the  power  of  moderate  correction,  and  has  confided  the  graduation 
of  punishments  within  the  limits  of  tliis  gi-ant,  to  the  discretion  of 
the  teacher." 

"  The  hue  which  separates  moderate  correction  from  immoderate 
punishment,  can  only  be  ascertained  from  general  principles.  The 
welfare  of  the  child  is  the  main  purpose  for  which  the  pain  is  per- 
mitted to  be  inflicted.  Any  punishment  therefore  which  may 
seriously  endanger  life,  limb  or  health,  or  shall  disfigure  the  child, 
or  cause  any  other  permanent  injury,  may  be  pronounced  in  itself 
immoderate,  as  not  only  being  unnecessary  for,  but  inconsistent 
with  the  purpose  for  which  correction  is  authorized.  But  any  cor- 
rection however  severe,  which  produces  temporary  pain  only,  and 
no  permanent  ill,  cannot  be  so  pronounced,  since  it  may  have  been 
necessary  for  the  reformation  of  the  child,  and  does  not  affect  in- 
juriously its  future  welfare." 

We  hold,  therefore,  that  it  may  be  laid  down  as  a  general  rule, 
that  teachers  exceed  the  limits  of  their  authority,  when  they  cause 
lasting  mischief ;  but  act  within  the  limits  of  it,  when  they  inflict 
temporary  pain  only.  AVhen  the  correction  administered  is  not 
in  itself  immoderate,  and  therefore  beyond  the  authority  of  the 
teacher,  its  legahty  or  illegality  must  depend  entirely,  we  think, 
on  the  quo  animo,  with  which  it  Avas  administered.  Within  the 
sphere  of  his  authority,  the  master  is  the  judge,  where  con-ection 
is  required,  and  the  degree  of  correction  necessary ;  and  like  others, 
entrusted  with  a  discretion,  he  cannot  be  made  penally  responsible 
for  error  of  judgment,  but  only  for  wickedness  of  purpose.  Tlie 
best  and  wisest  of  mortals  are  weak  and  erring  creatures ;  and  in 
the  exercise  of  functions  in  -^^■llich  their  judgment  is  to  be  the  guide, 
cannot  be  rightfully  required  to  engage  for  more  than  honesty  of 
purpose,  and  dihgence  of  execution.     His  judgment  must  be  pre- 


SCIIOOLMxVSTEU  A_ND   I'LTIL,  521 

snmcd  to  be  correct,  because  ho-  is  thejudrjc,  and  also  because  of  the 
difficulty  of  proving  of  the  ofience,  or  the  accumulation  of  offences 
that  called  for  the  correction  ;  and  of  showing  the  peculiar  temper- 
ament, disposition  and  habits  of  the  individual  corrected  ;  and  of 
exhibiting  the  various  milder  means,  that  may  have  been  ineffect- 
ually used  before  correction  was  resorted  to. 

But  the  master  may  be  punishable  when  he  does  not  transcend 
the  powers  granted,  if  he  grossly  abuse  them.  If  he  use  his  au- 
thority as  a  cover  for  malice,  and,  under  the  pretence  of  adminis- 
tering correction,  gratify  his  own  bad  passions,  the  mask  of  the 
judge  shall  be  taken  off;  and  he  will  stand  amenable  to  justice  as 
an  individual  not  invested  with  judicial  power. 

It  is  perhaps  a  questionable  and  unsettled  question  in  the  law 
upon  this  relation,  as  to  the  precise  point  of  time  when  the  paren- 
tal authority  ceases,  and  that  of  the  master  begins ;  that  is,  whose 
authority  actually  exists  when  the  scholar  is  on  his  way  to,  and 
on  his  return  from  school ;  that  of  the  parent,  or  that  of  the  master. 
Naturally,  it  is  to  be  presumed,  it  is  that  of  the  parent ;  the  masters 
dominion  is  the  school-room,  and  its  appurtenances,  during  school 
hours.  But  if  there  be  special  regulations  understood  by  the  pa- 
rent to  be  the  lailes  of  the  school ;  regulatmg  the  deportment  of 
the  scholar  while  on  his  way  to,  and  from  school ;  then  the  impU- 
cation  of  law  would  be,  that  the  parent  consents,  to  the  masters 
authority  to  coiTect  for  \'iolations  of  such  rules.  So  too,  doubtless, 
under  the  authority  of  the  master  to  discipHne,  correct  and  com- 
pel obedience  to  duty  and  dihgence  in  study ;  he  may  detain  a 
delinquent  scholar  after  the  school  generally  is  dismissed,  to  compel 
him  to  complete  a  lesson  or  duty  which  might  have  been  accom- 
plished with  due  application  in  the  regular  hours  of  school,  provi- 
ded the  time  of  such  detention  extend  only  to  such  reasonable 
time  as  is  sufficient  to  perform  the  task,  or  had  been  spent  by  the 
scholar  in  play  or  idleness,  which  caused  the  dehnquencies.  But 
in  the  absence  of  all  school  rules  regidating  the  conduct  of  the 
scholar  on  the  way,  and  known  to  the  parent,  the  legal  presump- 
tion is,  that  as  parents  desu-e  the  services  of  their  childi'en  at  home, 
except  the  usual  school  hom-s,  that  they  suiTender  then-  authority 
over  the  child,  only,  during  the  regular  school  hours,  and  that  as 
the  parent  and  not  the  teacher  is  somewhat  responsible  for  the 
(36 


522  PEINCir.\L  ^N^'D   SURETY. 

conduct   of  their  children  except  while  in  school,  the  parent  is 
also  responsible  for  the  conduct  of  the  child  on  the  way. 

7.  "  "^Miere  parties  bail  another  in  legal  proceedings,  they  are 
regarded  in  law  as  his  jailors,  selected  by  himself,  and  with  the 
right  to  his  legal  custody  for  the  purpose  of  seizing  and  delivering 
him  up  to  the  oflicers  of  the  law,  at  any  time  before  the  hability 
of  the  bail  has  become  fixed  by  a  forfeiture  being  judicially  de- 
clared, on  his  failure  to  comply  with  the  condition  of  the  bond,  a 
This  is  a  right  they  may  exercise  in  person,  or  by  agent,  and  with- 
out resort  to  judicial  process."  h 

This  relation  of  principal  and  bail  in  civil  cases,  commonly  called 
special  bail,  is  a  thing  of  the  past.  It  existed  when  the  debtor 
was  liable  to  be  arrested,  as  he  could  be,  upon  demands  arising 
upon  contract,  and  when  so  arrested,  to  avoid  further  imprison- 
ment, gave  l)ail  to  the  sheriff,  conditioned  that  he  w^ould  give  spe- 
cial bail  to  the  plaintiff'  in  the  action  within  twenty  days  after  the 
return  of  the  writ,  so  that  the  plaintiff"  might  have  his  body  to  im- 
prison, in  satisfaction  of  the  judgment  to  be  obtained  in  the  action. 
His  special  bail  became  in  law  the  jailors  of  his  own  choosing,  and 
he  was  thus  immersed  in  a  hving  prison,  or  his  body  subject  to  the 
actual  custody  of  his  special  bail,  and  liable  at  any  time,  and  at 
all  places,  to  be  taken  by  his  bail,  and  cast  into  the  common  gaol 
upon  a  copy  of  the  bail  piece,  by  his  special  bail,  or  by  a  person 
'authorized  by  them.  Thanks  to  the  progi-essive  spuit  of  the  age, 
this  barbarous  excrescence  upon  the  laws  of  the  past,  no  longer 
obscures  the  jurisprudence  of  the  free  citizens  of  this  state.  The 
law  to  abohsh  imprisonment  for  debt,  in  this  and  other  states,  has 
to  that  extent,  emancipated  the  honest  citizen  fi'om  this  odious 
penalty  arising  from  his  inabihty  to  pay  his  debts.  Though  he 
is  still  liable  to  be  restrained  of  his  personal  liberty  in  what  are 
called  actions  sounding  in  tort. 

8.  "  The  control  of  the  creditor  over  the  person  of  his  debtor 
through  legal  process  to  enforce  payment  of  his  demand,  is  now 
nearly  abohshed,  thanks  to  the  humane  provisions  of  the  recent 
statutory  and  constitutional  provisions.  In  cases  of  torts,  and 
where  debts  were  fraudulently  contracted,  or  where  there  is  an 

a  Hai-p  V.  Osgood,  2  Hill,  21G. 
b  Parker  v.  Bidwell,  3  Conn.  84. 


CKEDITOK  AND  DEBTOR.  523 

attempt  at  a  fraudulent  disposition  of  property  ■with  the  intent 
to  deprive  the  creditor  of  payment,  the  body  of  the  debtor  may 
be  seized  and  confined ;  but  the  reader  is  referred  to  the  constitu- 
tion and  statutes  of  liis  state  for  information  on  this  subject." 

The  causes  whieli  in  tliis  state  give  the  crechtor  power  over  the 
personal  liberty  of  the  debtor,  are  limited  to  five,  by  express  pro- 
visions of  the  statute,  a     1.  In  an  action  for  the  recoveiy  of  dam- 
ages, on  a  cause  of  action  not  arising  out  of  contract,  ■where  the 
defendant  is  not  a  resident  of  the  state,  or  is  about  to  remove 
therefrom,  or  where  the  action  is  for  an  injury  to  the  person  or 
character,  or  for  injuring,  or  ■wrongfully  taking,  detaining,  or  con- 
verting property.     2.  In  an  action  for  a  fine  or  penalty,  or  on  a 
promise  to  marry,  or  for  money  received,  or  property  embezzled 
or  fraudulently  misappUed  by  a  public  officer  or  attorney,  solicitor 
or  coimselloT,  or  by  an  officer  or  agent  of  a  corporation,  or  banking 
association,  in  the  course  of  his  employment  as  such,  or  by  any 
factor,  agent,  broker,  or  other  person  in  a  fiduciary  capacity,  or 
for  the  misconduct  or  neglect  in  office,  or  in  a  professional  employ- 
ment.    3.  In  an  action  to  recover  the  possession  of  personal  prop- 
erty unjustly  detained,  •where  the  property  or  any  part  thereof  has 
been  concealed,  removed,  or  disposed  of  so  that  it  cannot  be  found 
or  taken  by  the  sheritl",  and  ■with  the  intent  that  it  should  not  be 
found  or  taken,  or  Avitli  the  intent  to  deprive  the  plaintiff  of  the 
benefit  thereof.     4.  When  the  defendant  has  been  guilty  of  a  fraud, 
in  contracting  the  debt,  or  incurring  the  obhgation  for  which  the 
action  is  brought,  or  in  concealing  or  disposing  of  the  property, 
for  the  taking,  detention  or  conversion  of  which  the  action  is 
brought,  or  when  the  action  is  brought  to  recover  damages  for 
fraud  or  deceit.     5.  When  the  defendant  has  removed  or  disposed 
of  his  property,  or  is  about  to  do  so,  with  intent  to  defi'aud  his 
creditors.     But  no  female  can  be  arrested  in  any  action,  except 
for  wilful  injury  to  person,  character,  or  property.  Even  an-est  for 
these  causes  cannot  be  made,  until  it  has  been  judicially  deter- 
mined by  a  judge  of  some  court  upon  proper  application,  and  upon 
satisfactory  evidence  to  him,  that  a  cause  of  action  exists,  and 
that  the  case  comes  within  one  of  the  five  subdivisions  of  causes 
above  enumerated,  and  a  sufficient  bond  or  undertaking,  satisfac- 

a  Code,  §  179. 


524  CREDITOR  AXD  DEBTOR. 

toiy  to,  and  approved  by  said  judge,  shall  be  given  by  the  plaintiff 
to  pay  to  the  defendant  all  costs  and  damages  he  may  recover  in 
such  action.  The  statute  further  provides  the  manner  in  which 
the  defendant  aiTCsted  for  these  causes,  can  be  discharged  from 
such  arrest.  All  these  matters  are  subjects  that  belong  to  practice, 
not  connected  with  the  question  of  power  of  restraint. 

These  then,  are  the  legal  restraints  upon,  and  qualifications  to 
the  right  of  personal  liberty.  For  any  other  restraint,  or  for  the 
legal  abuse  of  the  legal  rights  which  have  been  above  specified, 
the  party  restrained,  is  entitled  to  immediate  process  from  the 
courts,  by  liaheas  corjjus,  and  to  speedy  relief  thereon. 


RIGHTS   A2\D  BIMUNITIES   OF  THE   CITIZEN.  525 


CHAPTER  XVII. 

OF  CONSTITUTIONAL  PKOTECTION  TO  THE  PERSON  OF  THE  CITIZEN 
—  OTHER  TH.iN  PERSONAL  LIBERTY. 

RIGHTS   AND   IMMiriJITIZS  OF  THE   CITIZEN. 

The  leading  idea  put  forth  iu  the  declaration  of  our  independ- 
ence, as  well  as  in  the  preamble  and  body  of  our  national  consti- 
tution, is  the  equaUty  of  rights  of  all  mankind.  Not  only  was  it 
the  object  of  these  instruments,  to  secure  them  the  blessings  of  lib- 
erty and  equaUty,  but  also  to  secure  alike  to  each  and  every  citizen, 
all  the  benefits  wliicli  is  oonfeiTed  upon  each  and  every  other  citizen 
of  the  states  or  of  tlie  nation.  To  secure  this  end,  the  federal  con- 
stitution speaks  in  an  authoritative  tone  :  "  The  citizens  of  each 
state  shall  be  entitled  to  all  the  privileges  and  immunities  of  citi- 
zens of  the  eeveral  states." 

It  is  no  part  of  our  purpose  to  make  this  work  the  history  o* 
our  political  organizations,  nor  to  point  out  the  reasons  therefrom, 
that  lead  to  the  insertion  of  this  provision  in  the  constitution ;  but 
only  to  treat  it  as  a  sacred  right  secured  to  every  citizen,  because 
we  find  it  so  secured  by  the  fundamental  law  of  the  government. 
It  is  an  invaluable  privilege  ;  it  becomes  the  birthright  of  every 
natural  born  citizen ;  and  the  lawfully  acquired  right  of  eveiy 
naturalized  citizen.  By  tliis  constitutional  provision,  every  citizen 
of  a  state,  is  likewise  a  citizen  of  the  United  States ;  and  as  a 
national  citizen,  he  is  in  theory,  pohtically  and  potentially  present, 
and  has  the  right  to  be  actually  and  personally  present,  in  every 
part  of  the  national  domain.  He  possesses  the  right  to  be  person- 
ally present  in  any  state  or  tenitory  of  the  government,  and  to 
enjoy  there,  the  right  and  freedom  to  speak  his  opinions  ;  to  do 
and  perform  all  lawfiil  acts  ;  and  to  enjoy  all  the  privileges  and 
immunities  that  any  other  citizen  of  that,  or  any  other  state  or 
territory,  in  wliich  it  is  his  pleasure  to  be,  may  enjoy ;  and  any 
state  regulation,  that  interferes  with  those  rights  of  a  national  citi- 


526  HIGHTS  AXD  IMMUNITIES  OF  THE  CITIZEN. 

zen,  iu  manner  or  effect,  different  from  that  which  its  own  citizens 
enjoy,  does  an  act  which  directly  conflicts  with  his  constitutional 
rights,  -whatever  may  be  the  pretence  for  adopting  such  regula- 
tions. Cotemporaneous  experience  has  taught  us,  that  the  viola- 
tion of  this  sacred  right,  was  one  of  the  leading  reasons  of  bring- 
ing on  the  late  national  disruption. 

QUAETERING  SOLDIERS  IN  PEIVATE  HOUSES. 

This  provision  speaks  for  itself.  The  experience  of  all  nations, 
has  shown,  that  a  large  standing  army  in  time  of  peace,  should  bo 
avoided  as  dangerous  to  liberty,  and  that  the  quartering  of  soldiers 
upon  the  citizens  of  the  state,  had  been  a  very  common  resort  of 
arbitrary  princes,  and  was  full  of  inconvenience  and  peril  to  the 
citizens.  It  has  been  well  said  by  Judge  Cooley,  a  that,  "It  is 
difficult  to  unagine  a  more  terrible  engine  of  oppression  than  the 
power  in  an  executive,  to  fill  the  house  of  an  obnoxious  person 
with  a  company  of  soldiers,  who  are  to  be  fed  and  warmed  at  his 
expense,  under  the  direction  of  an  oflicer  accustomed  to  the  exercise 
of  arbitrary  power,  and  in  whose  presence  the  ordinary  laws  of 
courtesy,  not  less  than  the  civil  restraints  which  protect  person  and 
property,  must  give  way  to  unbridled  will,  of  one  who  is  sent  as  an 
instrument  of  punishment ;  and  with  whom,  insult  and  outrage  may 
appear  quite  in  the  fine  of  duty."  The  clause,  as  we  find  it  in  the 
national  constitution,  has  come  down  to  us  through  the  petition  of 
rights ;  the  Bill  of  Eights  of  1688,  and  the  Declaration  of  Independ- 
ence ;  and  is  carried  out  in  the  national  constitution  ;  secui'ing  the 
principle  to  the  nation,  and  to  the  citizen,  that  the  military  shall, 
in  time  of  peace,  be  in  strict  subordination  to  the  civil  power,  h 

UNREASONABLE   SEARCHES  AND   SEIZURES. 

This  constitutional  sanction,  and  adoption  of  what  had  become 
a  feature  of  the  common  law,  and  the  test  which  it  affords  for  try- 
ing the  legahty  of  any  warrant  by  which  a  man  may  be  deprived 
of  his  liberty,  or  disturbed  in  the  enjoyment  of  his  property;  cannot 
be  too  highly  valued  by  the  citizens  of  a  free  government.  This 
principle  had  been  secured  before  the  adoption  of  our  constitution, 

a  Cooley  on  Const.  Lim.  308. 
I  Story  on  Const.  §  1900 


UNREASONABLE  SEAECHES  AND   SEIZURES.  527 

even  in  England,  and  grew  out  of  an  arbitrary  abuse  of  power  in 
that  country,  in  issuing,  under  a  statute  authorizing  it,  what  was 
called  writs  of  assistance,  by  the  courts,  to  revenue,  and  other  offi- 
cers, empowering  them  al  their  discrdion,  to  search  suspected 
places  for  smuggled  goods.  This,  Avas  in  that  day,  i)ronounced 
"  the  worst  instrument  of  arbitrary  power  ;  tin;  most  destructive 
of  Enghsh  lil)erty,  and  of  the  fundamental  principles  of  law,  that 
ever  was  found  m  an  English  law  book  ;  since  they  placed  the  lib- 
erty of  every  man  in  the  hands  of  every  petty  officer."  "  This  con- 
stitutional provision,  seems  indispensable  to  the  full  enjoyment  of 
the  rights  of  personal  secm-ity,  personal  liberty,  and  private  prop- 
erty," a  Its  introduction  into  the  amendments  to  the  constitution, 
was  doubtless,  occasioned  by  the  great  sensation  excited  in  Eng- 
land, as  well  as  in  this  country,  down  to  the  time  of  the  revolution, 
upon  acts  of  arbitrary  power,  exercised  under  this  pretence  of  law 
based  upon  this  statute,  enacted  undca-  the  pretence  of  regulating 
the  press,  which  authorized  the  issuing  of  warrants,  to  take  up, 
without  naming  any  person  in  particular,  the  authors,  publishers, 
and  printers  of  such  obscene,  or  seditious  libels,  as  were  particu- 
larly mentioned  in  the  warrant.  Though  this  statute  was  hmited 
in  its  time  of  duration ;  the  practice  afterwards  continued  for  a 
period  of  seventy  years,  and  down  to  the  year  1763  ;  and  was  fol- 
lowed in  practice  even  in  this  country.  Its  legality  was  then 
tested  in  England  in  the  Coui-ts  of  King's  Bench,  where  it  was  sol- 
emnly declared,  that  such  warrants  were  void  for  uncertainty,  b 
It  may  now  be  regarded  as  settled  common  law,  that  a  warrant, 
and  the  complaint  upon  which  it  is  founded,  to  be  legal,  must  not 
only  state  the  name  of  the  party,  but  also,  the  time  and  place,  and 
the  nature  of  the  ofifence,  with  reasonable  certainty,  and  in  New 
York  it  is  regulated  by  statutes,  c 

In  the  administration  of  preventive  justice,  even  at  common  law, 
it  is  believed,  that  in  this  coimtry,  the  following  rules  are  of  uni- 
versal adoption,  as  law,  and  are  held  to  be  the  right  of  every  citizen 
to  have  kept  sacred,  viz  :  That  some  probable  ground  of  suspicion 
must  be  presented  to  a  magistrate  possessing  judicial  authority, 

a  2  Story  on  Coust.  §1902. 

h  Money  v.  Leach,  3  Burr.  17G7. 

c  1  Eev.  Stilt.  93,  §  11;  Id.  125,  §  GG,  (51);  3  Rev.  Stat.  71G,  §§  32  to  3G, 


528  TINEEASONABLE  SEARCHES  A^'D   SEIZURES. 

to  issue  the  writ ;  that  it  be  supported  by  oath  or  affirmation';  that 
the  party  charged  be  allowed  to  find  reasonable,  and  not  oppres- 
sive bail  to  answer,  to  avoid  being  thrown  into  prison ;  that  he 
have  the  benefit  of  the  writ  of  habeas  corpus,  and  thus  obtain  his 
release  if  wrongfully  confined ;  and  that  he  may  be  restored  to  his 
former  liberty  and  rights,  in  order  to  prepare  for  a  judicial  exami- 
nation of  his  case  by  a  day  in  court. 

"A  statute  which  should  permit  the  breaking  and  entericg  of  a 
man's  house,  and  the  examination  of  books  and  papers  with  a  view 
to  discover  the  evidence  of  crime,  might  possibly  not  be  void,  on  con- 
stitutional grounds  in  some  cases,  as  for  instance,  books  and 
papers  of  a  pubhc  character,  retained  from  their  lawful  custody  ; 
for  females,  supposed  to  be  confined  in  houses  of  ill  fame ;  for 
children,  enticed  or  kept  away  from  parents  and  guardians ;  and 
for  counterfeit  money,  forged  bills  and  the  like  ;  but  the  power  of 
the  legislature  to  authorize  a  resort  to  tliis  process,  is  one  that 
can  be  properly  exercised  only  in  extreme  cases,  and  it  is  some- 
times better,  even  that  crime  should  go  unpunished,  than  that  the 
citizen  should  be  liable  to  have  his  premises  invaded ;  his  trunks 
broken  open  ;  his  private  books,  letters  and  papers  exposed  to  the 
prying  curiosity,  and  the  misconstructions  of  ignorant  and  suspic- 
ious persons,  and  tliis,  under  the  direction  of  a  mere  ministerial 
officer  who  brings  with  him  such  assistants  as  he  pleases,  and  who 
will  be  more  likely  to  select  them  with  reference  to  physical 
strength  and  courage,  than  to  their  sensitive  regard  to  the  rights 
and  feelings  of  others.  To  incline  against  such  laAvs,  is  to  incline 
on  the  side  of  safety."  a 

"  Instances  sometimes  occur,  in  which  ministerial  officers  take 
such  hberties  in  endeavoring  to  discover  and  punish  ofienders,  as 
are  even  more  ciiminal,  than  the  ofiences  they  seek  to  punish.  The 
employment  of  spies  and  decoys  to  lead  men  on  to  the  commission 
of  crime,  on  the  pretence  of  bringing  criminals  to  justice,  camiot 
be  too  often  or  too  strongly  condemned ;  and  the  prying  into  pri- 
vate correspondence,  by  officers,  which  has  sometimes  been  per- 
mitted by  postmasters,  is  dhectly  in  the  face  of  the  law,  and  utterly 
unjustifiable.  The  importance  of  public  confidence  in  the  invio- 
lability of  correspondence  through  the  post  office,  cannot  well  be 

a  Cooley  on  Const.  Limitations,  306. 


UNRE.\.S0N.U3LE   SEAECIIES  AND   SEIZUIIES.  520 

overrated ;  and  the  proi)osition  to  permit  letters  to  be  opened  at 
the  discretion  of  a  ministerial  officer,  would  be  met  with  general 
indignation.  The  same  may  be  said  of  private  coiTespondenee  by 
telegraph  ;  tlie  i)ublic  are  not  entitled  to  it  for  any  purpose  ;  and 
a  man's  servants,  with  the  same  propriety,  may  be  subpojned  to 
bring  into  court  his  private  letters  and  journals,  or  a  telegraph 
operator  to  bring  in  liis  private  con-espondence.  In  either  case, 
it  would  be  ecpiivalent  to  an  unlawful  and  unjustifiable  seizure  of 
his  papers — such  an  "  unreasonable  seizure"  as  is  directly  con- 
demned by  the  constitution."  a 

"They  are  obnoxious  in  pmmplc,  necessarily  odious  in  the 
method  of  execution ;  and  tend  to  invite  abuse  and  to  cover  the 
commission  of  crime.  We  think  it  would  generally  be  safe  for  the 
legislature  to  regard  all  those  "  searches  and  seizures  unreasonable" 
which  have  hitherto  been  known  to  the  law,  and  on  that  gi'ound 
to  abstain  fi'om  authorizing  them,  leaving  the  parties  and  the 
public  to  the  accustomed  remedies." 

While  we  regard  these  views  of  the  learned  author  as  worthy  of 
the  highest  consideration,  and  in  the  main  sound  and  judicious,  as 
well  as  happily  expressed ;  we  are  compelled  to  admit,  that  there 
are  two  sides  to  this  question.  In  these  modern  days,  when  vil- 
lainy is  calling  to  its  aid  the  highest  and  chiefest  experts  in  science ; 
when  intellect  and  skill  can  receive  the  highest  reward  in  criminal 
employments  ;  the  sound  old  maxim  mlus  ^'^opidl supremalex,m\xs,i 
be  called  into  application,  to  defend  the  public,  and  aid  to  secure  its 
safety.  There  is  the  known,  and  generally  well  understood  imphed 
assent  on  the  part  of  every  member  of  society,  that  his  own  indi- 
%'idual  welfare,  his  property,  liberty,  and  even  his  life,  shall,  under 
iircumstances  of  emergency,  or  extreme  necessity,  be  yielded  to 
the  public  safety,  or  the  public  good  ;  that  private  mconvenience 
and  even  mischief,  shall  be  endured  rather  than  great  pubhc  incon- 
venience. This  is  based  on  the  very  nature  of  the  social  compact, 
and  upon  which  all  municipal  law  is  founded,  that  even  indi^•idual 
liberty  is  given  up  to  insure  the  safety  and  well  being  of  the 
public. 

a  Id.  307. 


67 


630  ACCUSATION  AND  TRIAL  FOR  CRIME. 

Little  need  be  said  upon  tliis  constitutional  security  to  the  citi- 
zen, other  than  to  refer  to  the  provision  in  both  national  and  state 
constitutions,  in  relation  to  it.  No  person  shall  be  held  to  answer 
for  a  capital  or  otherwise  infamous  crime,  unless  upon  the  pre- 
sentment or  mdictment  of  a  grand  jury.  The  statutes  of  the  state 
have  regulated  the  mode  of  their  selection,  and  have  secured  to  the 
citizen,  the  benefit  of  a  high  class  and  character  of  citizens  to  com- 
pose this  body,  who,  before  they  enter  upon  the  performance  of 
then*  duties,  are  required  to  be  sworn  and  charged  in  relation  to 
their  duties,  by  the  judge  who  presides  at  the  court  to  which  they 
are  summoned.  There  is  a  minor  class  of  offences  called  misde- 
meanors, which  the  statutes  provide  may  be  tried  in  the  inferior 
courts  without  indictment.  The  only  other  exceptions  are  those 
mentioned  in  the  constitution,  when  the  citizen  belongs  to  the  land 
or  naval  forces,  or  in  the  militia  in  time  of  war,  when  in  actual  ser- 
vice or  in  time  of  danger.  He  is  secured  a  speedy  trial,  or,  in  a 
case  less  than  capital,  if  necessity  require  it,  to  be  bailed  out,  b}^ 
reasonable,  and  not  oppressive  bail,  to  enable  him  within  reasona- 
ble time  to  prepare  for  his  defence ;  he  is  allowed  a  public  trial, 
surrounded  by  the  safeguard  of  a  judge  to  pronounce  the  law ;  he 
shall  previously,  be  full}*,  publicly  informed  of  the  nature  of  his 
offence  or  accusation  ;  he  shall  have  the  assistance  of  counsel  to 
aid  him  in  his  defence  ;  he  is  entitled  to  compulsory  process  to 
compel  the  attendance  of  witnesses ;  he  is  entitled  to  challenge  his 
jurors,  and  have  them  tried  as  to  their  peculiarities  or  prejudices, 
and  in  this  state,  is  entitled  to  peremptory  challenge  of  twenty 
jurors,  on  the  trial  of  a  capital  offence,  or  for  an  offence  punishable 
in  the  state  jDrison  for  ten  years  or  longer ;  and  for  lower  offences, 
to  a  peremptory  challenge  of  live  jurors :  a  he  is  entitled  to  be 
confronted  with  his  witnesses,  in  the  presence  of  the  jury  and  the 
court,  and  he  is  not  compelled  to  be  a  witness  to  testify  against 
liimself. 

In  no  other  country,  and  under  no  other  government  in  the  world, 
is  the  citizen,  who  is  charged  with  an  offence,  so  surrounded  with 
substantial  safeguards  and  securities.  These  are  the  outlines ;  the 
details,  which  belong  to  the  subject  of  practice,  are  equally  protec- 
tive and  liberal  towards  the  accused.     But  beyond  these  is  the  still 

a  2  llev.  stilt.  TIM,  v-^  'J,  10. 


ACCUSATION  AND  TKIAL  FOR  CHIME.  531 

furtlier  security  that  ho  shall  not  be  twice  put  in  jeopardy  by  a 
trial,  for  the  same  offence. 

The  light,  as  well  as  the  mode  of  traverse  by  a  jury  of  twelve 
men,  is  an  essential  and  inestimable  security  to  the  accused.  This 
is  what  is  called  a  common  law  jury;  and  he  cannot  be  deprived  of 
iliat  number  to  sit  in  his  case  ;  even  a  consent  by  him  to  be  tried 
1 1}'  a  less  number,  would  be  mistrial  and  void,  a  because  it  would 
be  a  tribunal  unknown  to  the  law  and  constitution,  one  crea- 
ted by  the  parties.  He  is  also  entitled  by  the  constitution  to  have 
his  trial  not  among  strangers,  or  in  a  distant  or  strange  neighbor- 
hood, but  in  his  own  vicinage  in  the  district  in  which  the  offence 
is  charged  to  have  been  committed,  and  in  a  district  previously 
fixed  by  laAv.  Thus,  he  is  secured  a  trial  w^here  he  is  known ; 
where  he  has  the  benefit  of  his  own  character  and  standing  among 
his  neighbors ;  with  witnesses  near  home ;  and  by  jurors  who 
may  know  not  only  his  character,  but  that  of  the  witnesses  who 
testify  on  the  trial.  He  has  the  benefit  of  the  varieties  of  opinions 
of  twelve  independent  men,  each  entitled  to  his  own  way  of  weigh- 
ing and  appreciating  facts  as  well  as  witmcsscs,  and  he  cannot  be 
convicted,  except  by  the  unanimous  verdict  of  the  twelve  jurors. 

This  is  an  advantage  which  can  only  be  appreciated  by  those 
who  are  familliar  Avith  the  practical  workings  of  the  system  of  jury 
trials  in  criminal  cases.  Jurors  of  equal  intelHgence,  of  equal 
integrity  and  conscientiousness,  draw  different  conclusions  fi-om  the 
same  case.  This  idea  was  well  expressed  by  Sir  John  Vaughn,  Kt., 
Chief  Justice  of  the  Common  Pleas  of  England,  in  a  case  where  there 
was  an  attempt  to  punish  a  jury  for  corruptly  disagreeing  in  a  case 
siibmitted  to  them,  h  "I  would  like  to  know,"  said  the  Chief  Jus- 
tice, "  whether  anything  be  more  common,  than  for  two  men,  stu- 
dents, barristers,  or  judges,  to  deduce  contrary  and  opposite  con- 
clusions out  of  the  same  case  in  law '?  And  is  there  any  difference' 
that  two  men  should  infer  distinct  conclusions  from  the  same 
testimony?  Is  anything  more  known, than  that  the  same  author, 
and  place  in  that  author,  is  forcibly  urged  to  maintain  contrary 
conclusions,  and  the  decisions  held,  which  is  in  the  right  ?  Is 
anything  more  frequent,  in  the  controversies  of  religion,  than  to 

a  Cancemi  v.  The  People,  18  N.  Y.  128. 
h  Yaugbu  Iv.  Ill;  Bushucll's  Case. 


532  ACCUSATION  AND  TRIAL  FOK  CEIME. 

press  the  same  text  to  opposite  tenets?  How  then  comes  it  to  pass, 
that  two  persons  may  not  .apprehend,  with  reason  and  honesty, 
what  a  witness,  or  many,  say,  to  prove  in  the  understanding  of 
one,  phiinly  one  thing,  but  in  the  apprehension  of  the  other,  clearly 
the  contrary  thing?  Must  therefore  one  of  these  merit  fine  and 
imprisonment,  because  he  doth  that  which  he  cannot  otherwise 
do,  preserving  his  oath  and  integrity  ?  And  this  often  is  the  case 
of  the  judge  and  jury." 

Another,  and  perhaps  one  of  the  most  important  pri\dleges  of 
the  accused,  and  not  only  a  privilege  but  a  right,  a  constitutional 
right,  is,  that  he  shall  be  allowed  a  defence  by  counsel  on  the  trial, 
when  so  accused.  When  we  compare  the  humanity  of  this  right, 
with  the  barbarity  of  the  ancient  criminal  law  of  England,  which 
denied  to  persons  accused  of  the  crimes  of  treason  or  felony,  the 
aid  of  counsel,  it  should  inspire  a  feeling  of  pride  in  the  American 
citizen,  that  he  lives  under  the  protection  of  such  a  government. 

"When  an  ignorant  person, unaccustomed  to  public  assemblies, 
and  perhaps  feeble  in  body  or  in  intellect,  was  put  on  trial  on  a 
charge  of  which,  Avhether  tnie  or  false,  might  speedily  consign  him 
to  an  ignominious  death  ;  with  able  counsel  on  the  part  of  the 
government,  aiTaj'ed  against  him  ;  and  all  the  machinery  of  the 
law  ready  to  be  employed  to  produce  the  evidence  of  circumstances 
indicating  guilt,  it  is  painful  to  contemplate  the  barbarity  which 
could  deny  him  professional  aid  ;  especially,  when  in  most  cases 
he  would  be  imprisoned  immediately  on  being  apprehended,  and 
would  thereby  be  prevented  from  making  even  the  feeble  i^repa- 
rations  for  defence,  that  otherwise  might  have  been  within  his 
power."  a 

This  horrible  practice  continued  in  England  until  the  year  1695, 
the  seventh  of  William  III,  when  a  statute  was  passed  allowing 
*  counsel  to  persons  indicted  for  treason.  A  notable  case,  (in  this  day 
it  would  be  called  infamously  barbarous),  is  reported  in  the  sixth 
volume  of  the  English  state  trials,  which  occurred  on  the  day  before 
this  statute  took  effect,  but  after  its  passage,  William  Parkins  was 
indicted  for  treason.  On  his  arraignment  and  pleading  not  guilty, 
he  asked  permission  "  To  speak  a  word ;  if  your  lordship  pleases." 
Lord  Chief  Justice.  "  Aye  sir,  what  say  you."     Parkins.  "  My  lord,  I 

a  Coolf"}'  oil  Const.  Liiii.  .".'!!.   Note. 


ACCUSATION  AND  'i'lilAL  FOR  CItlME.  boo 

navo  been  kept  in  hard  prison  ever  since  I  was  committed ;  nobody 
has  been  permitted  to  come  to  see  me  till  Friday  last — then  my 
counsel  came  to  me ;  and  being  charged  with  many  facts  as  I  see 
in  tliis  indictment,  it  will  bo  necessary  to  have  divers  witnesses  to 
clear  myself  of  these  particulars  ;  they  are  dispersed  up  and  down, 
and  I  have  had  no  time  to  look  after  them,  and  therefore,  I  beg 
your  lordship  to  put  olF  my  trial  till  another  day." 

Lord  Ch.  J.  "  AVheu  had  you  hrst  notice  of  your  trial  V  " 

Parkins.  "  The  first  notice  of  my  trial  was  on  Vrednesday  last, 
in  the  afternoon." 

Lord  Ch.  J.  "  That  is  a  sufficient  time  of  notice  ;  sure  you 
might  have  provided  your  witnesses  and  prepared  for  it  by  this 
time?" 

Parkins.  "  But,  my  Lord,  being  kept  so  close  prisoner,  I  had 
no  opportunity  for  it,  for  it  was  not  possible  for  me  to  get  any 
body  to  come  to  me,  till  Friday  noon,  not  so  much  as  my  counsel, 
and  then,  there  was  but  two  days,  Saturday  and  Monday,  (for 
Sunday  is  no  day  of  business,)  and  it  is  impossible  for  me  to  be 
ready  in  the  manner  that  I  ought  to  be.  It  is  a  perfect  distress  and 
liardship  upon  me  to  be  put  so  soon  upon  my  trial  without  my 
witnesses,  and,  what  should  enable  me  to  make  my  defence  ;  there- 
iiM'c,  I  humbly  intreat  your  lordship,  to  put  it  off  till  another  day." 

After  various  other  interlocutions,  immaterial. 

Lord  Ch.  J.  "Tndy,  we  do  not  see  any  reason  to  put  off  the 
trial  upon  these  suggestions." 

Parkins.  "  My  Lord,  it  is  very  hard  ;  then  1  humbly  beg  that  I 
may  have  the  favor  ;  that  I  may  have  counsel  allowed  me  ;  I  have 
no  skUl  in  indictments." 

Lord  Ch.  J.  "  We  cannot  allow  counsel." 

Parkins.  "  My  Lord,  if  I  have  no  counsel,  I  do  not  understand 
these  matters,  nor  what  advantage  it  may  be  jiroper  for  me  to 
take  in  these  cases." 

Lord  Ch.  J.  "You  are  not  ignorant,  that  counsel  has  always 
been  refused  when  desired." 

Parkms.  "  My  Lord  there  is  a  new  act  of  parliament  that  is 
lately  made,  that  allows  counsel." 

Lord  Ch.  J.  "  But  that  does  not  commence  yet  sir." 

Parkins.  "Mv  Lord,  it  wants  but  one  day." 


534  ACCUSATION  AND   TELU:^  FOR  CF.BIE. 

Lord  Cli.  J.  "  That  is  as  iniicli  as  if  it  were  for  a  nmcli  longer 
time.  We  are  to  proceed  according  to  wliat  the  law  is,  and  not 
what  it  will  be." 

Siifiicieut  of  the  temper  and  spirit  of  English  judges  of  that  day, 
appears  m  the  report  of  this  case,  where  it  is  shown,  that  they  were 
removed  from  all  sympathy  with  the  people,  and  unrestrained  by 
constitution  or  statute.  The  want  of  common  humanity  in  a  judge, 
manifest  by  his  refusal  to  postpone  this  case  for  even  one  day. 
when  the  law  would  have  allowed  counsel  to  the  prisoner ;  deprived 
of  power  to  defend  himself :  needs  only  the  history  of  the  sequel 
to  complete  the  tyrrany  of  the  act  of  which  we  have  given  the 
prelude.  Parkins  was  of  course  convicted,  and  executed  the  fol- 
lowing day,  but  the  sentence  of  his  lordship,  should  be  appended 
to  make  the  tragedy  complete,  Avhich  was  as  follows  : 

"  That  you  go  back  to  the  place  from  whence  you  came,  and 
from  thence  be  drawn  on  a  hurdle  to  the  place  of  execution, 
where  you  shall  be  hanged  up  by  the  neck,  and  cut  down  alive  ; 
your  body  shall  be  ript  open ;  your  privy  member  be  cut  off ; 
your  bowels  taken  out,  and  burnt  before  your  face ;  your  hands 
shall  be  severed  from  your  body,  to  be  divided  into  four  quarters; 
and  your  head  and  quarters  to  be  at  the  disposal  of  the  King." 

The  mind  that  could  utter  this  sentence,  surely  needed  some  rehef 
at  its  close,  &e.  This  was  doubtless  obtained  by  his  most  devout  and 
pious  conclusion;  "and  may  the  Lord  have  mercy  upon  your  soul." 

"We  have  given  this  extract  from  the  trial  of  a  case  under  another 
government,  and  another  system  of  administering  the  criminal 
law,  to  show  the  striking  contrast  between  it,  and  the  system 
under  a  constitutionally  free  government ;  and  while,  even  in 
England,  now,  more  liberal  views  and  practice  obtains,  the  same 
humanity  in  this  respect  does  not  exist,  as  with  us.  A  Uberal 
view  of  construction  given  to  our  own  constitution,  is,  that  the 
prisoner  is  not  only  allowed  counsel,  l)ut  when  he  is  poor  and 
unable  to  provide  counsel  for  himself,  it  is  the  duty  of  the  court 
to  designate  appropriate  counsel  for  him,  to  be  paid  by  the  gov- 
ernment. Such  counsel  are  not  at  liberty  to  decline  the  duty, 
but  are  bound  to  put  forth  their  best  exertions  of  professional 
skill  to  that  end,  and  are  bound  by  all  the  obligations  of  duty  to 
their  clients,  as  is  required  in  any  other  case. 


EXCESSIVE  JJAIL,  VINES,  CRUEL  AND  UNUSUiU.  TUNISHMENTS.     OJo 

This  provision,  in  general  and  undefined  terms,  leaves  the  amount 
of  punishment,  much  the  subject  of  discretion  by  the  courts  ;  but 
statutes,  enacted  under  the  spirit  of  these  provisions  arc  to  be 
found,  not  only  passed  by  tlu;  nutiomd  le^'islature,  but  also  by  the 
legislatiu-es  of  the  states,  Avhich  fix  and  hmit  the  amount  of  punish- 
ment that  may  be  inflicted,  for  nearly  each  and  every  offence 
known  to  the  law  to  be  offences.  These  provisions  would  hardly 
seem  to  be  necessary  in  a  free  government,  since  it  is  scarcely  pos- 
sible, that  any  department  of  such  a  government  should  authorize 
or  justify  conduct  of  judges  whose  action  should  be  ranked  as 
worthy  such  terms  as  we  have  applied  to  the  English  judges. 
They  were  doubtless  adopted  by  us  as  an  admonition,  as  Avell  as 
caution  to  all  departments  of  government,  against  such  violent 
proceedings  as  had  taken  place  in  England  in  the  arbitrary  reigns 
-of  some  of  the  Stuarts.  «  "In  those  times,  demand  of  excessive 
bail  was  often  made  against  persons  who  were  odious  to  the  court, 
and  its  favorites  ;  and  on  faihng  to  procure  it,  were  committed  to 
prison.  Enormous  fines  and  amercements  were  also  sometimes 
imposed,  and  cruel  and  vindictive  punishments  inflicted."  Z>  Black- 
stone  also  informs  us,  "that  sanguinary  laws  are  a  bad  symptom  of 
the  distemper  of  any  state,  or  at  least  of  its  weak  constitution. 
The  laws  of  the  Eoman  kings,  and  the  twelve  tables  of  the  Decem- 
viri, were  full  of  cruel  punishments.  The  Porcian  law,  wliich 
exempted  all  citizens  from  sentence  of  death,  silently  abrogated 
them  all.  In  this  period  the  repubhc  flourished.  Under  the 
Emperor's,  severe  laws  were  revived,  and  then  the  empire  fell."  c 

While  even  some  of  the  states  of  the  union,  to  their  disgi-ace  be 
it  said,  still  continue  those  disgraceful  institutions,  the  whipping 
post,  the  pillory  and  the  stocks  ;  the  progress  of  public  sentiment, 
and  the  advancing  and  more  gentle  and  benign  influences  of  the 
christian  religion,  are  rapidly  creating  and  working  out  a  moro 
humane  spirit,  in  regard  to  pubHc  punishments ;  and  these  instru- 
ments are  now  viewed,  not  only  as  "cruel  and  unusual,"  but  as 
absolutely  barbarous. 

a  2  Lloyd's  Debate,  345. 
h  2  Story  on  Const.  §  1903. 
c  1  Black.  Com.  17. 


53G  THE   EIGHT  TO   FEEE  DISCUSSION  AND   PETITION. 

The  right  of  the  people  peaceably  to  assemble  and  to  petition 
the  government  for  a  redress  of  grievances,  is  a  necessary  result 
of  the  right  of  being  a  free  citizen.  It  is  a  simple,  primitive  and 
natural  right,  a  "  It  is  a  right,  (says  Judge  Story)  which  would 
seem  unnecessary  to  be  expressly  provided  for  in  a  republican 
government,  since  it  results  from  the  veiy  nature  of  its  structure 
and  institutions."  b  It  is  impossible  that  it  should  be  practicall}' 
denied,  until  the  spirit  of  liberty  had  wholly  disappeared ;  and  the 
people  had  become  so  servile  and  debased,  as  to  be  unfit  to  exer- 
cise any  of  the  privileges  of  freemen.  "  But  it  has  not  been 
thought  imimportant  to  protect  this  right  by  statutory  enactments, 
even  in  England,  and  indeed  it  will  be  remembered,  that  one  of 
the  most  memorable  attempts  to  crush  out  the  liberty  of  the  subject, 
in  that  country,  made  the  right  of  petition  the  point  of  attack ;  and 
collected  for  its  contemplated  victims,  the  chief  officers  in  the 
Episcopal  hierarchy.  The  trial  and  acquittal  of  the  seven  bishops 
under  James  II,  constituted  one  of  the  decisive  battles  in  Enghsh 
constitutional  history;  and  the  right  which  was  then  vindicated,  is 
a  *  sacred  right,'  which,  in  difficult  times,  shows  itself  in  its  full 
magnitude  ;  frequently  serves  as  a  safety  valve,  if  judiciously 
treated  by  the  recipients ;  and  may  give  to  the  representatives,  or 
other  bodies,  the  most  valuable  information.  It  may  right  many  a 
wrong,  and  the  deprivation  of  it,  would  at  once  be  felt  by  every 
freeman  as  a  degradation."  c 

But  despotism  is  the  same  in  all  human  governments  or  insti- 
tutions, where  power  is  unrestrained.  This  light  of  petition  was 
resisted  even  in  our  own  republican  form  of  government  in  the 
congress  of  the  United  States,  Avhen  offered  by  the  fiiends  of  free- 
dom on  the  subject  of  the  slave  trade ;  of  the  fugitive  slave  law  ; 
and  of  slavery ;  and  to  the  struggles  in  that  body  upon  these  sub- 
jects, we  may  indirectly  trace  one  of  the  leading  causes  of  the  late 
rebellion,  by  that  portion  of  the  states,  with  whom  the  institution 
of  slavery  was  a  favored  institution,  d  The  history  of  this  strug- 
gle belongs  not  to  this  work.     It  is  only  referred  to,  as  being  illus- 

a  Cooley  on  Const.  Limits,  319. 
fi  Story  on  Const.  §  1801. 
c  Cooley,  349. 

(Z  Benton's  Abr  of  Debates,  Vol.  2,  57-GO,  182-188,  43G-M4;  Vol.  12,  660-679. 
705-743;  Vol.  13,  5-28,  26C-280,  557-562. 


THE   FllEEDOM  OF  SrEECH  AND   OF  THE  TEESS.  537 

trative  of  thu  p(jwor  of  sclf-intcrcst,  upon  the  one  hand,  against 
the  declared  inalienable  rights  of  all  men,  to  hfe,  liberty,  and  the 
puj'suit  of  happiness,  upon  the  other. 

THE  rriEEDOM:  OF  SPEECH  AND  OF  THE  PRESS. 

It  being  one  of  the  great  fundamental  privileges  of  American 
governments,  that  the  people  are  the  sovereigns,  and  that  those 
■who  administer  the  government  are  their  agents  and  servants 
and  not  their  masters ;  it  woidd  have  been  a  political  solicism,  to 
have  permitted  the  smallest  restraint  of  the  right  of  the  people,  to 
enquu'e  into,  censure,  approve,  punish  or  reward  their  agents,  ac- 
cording to  their  merit  or  demerit.  The  constitution,  therefore, 
secures  to  them  the  unlimited  right  to  do  this,  either  by  speaking, 
■writmg,  printing,  or  by  any  other  mode  of  publishing  which  they 
may  think  proper.  This  being  the  only  mode  by  which  the  re- 
sponsibihty  of  the  agents  of  the  public  can  be  secured,  and  prac- 
tically enforced,  the  smallest  infringement  of  the  rights  guaranteed 
by  this  article,  must  threaten  the  total  subversion  of  the  govern- 
ment. For  a  representative  democracy  ceases  to  exist,  the  moment 
that  the  public  functionaries  are  by  any  means  absolved  from  their 
responsibility  to  their  constituents ;  and  this  happens,  whenever 
the  constituent  can  bo  restrained  in  any  manner,  from  speaking, 
writing,  or  publishing  his  opinions,  upon  any  pubhc  measure,  or 
upon  the  conduct  of  those  who  may  advise  or  execute  it.  a 

Though  tliis  amendment  to  the  constitution  is  in  general  and 
imqualified  language,  yet  it  is  plain,  that  it  imports  no  more  than 
that  every  man  shall  have  a  right  to  speak,  write,  print,  or  pubhsh 
his  opinions  upon  any  subject  whatsoever,  without  any  prior 
resti-aint,  so  always,  that  he  does  not  injure  any  other  person  hi 
his  rights,  person,  property  or  reputation ;  and  so  always,  that  he 
does  not  thereby  disturb  the  public  peace,  or  attempt  to  subvert 
the  government,  h  Chancellor  Kent  says,  c  that,  "  though  the  law 
be  solicitous  to  protect  every  man  in  his  fair  fame  and  character, 
it  is  equally  careful  that  the  Hberty  of  speech  and  of  the  press 
should  be  duly  preserved.  The  liberal  communication  of  sentiment, 
and  enthe  freedom  of  discussion,  in  respect  to  the  character  and 

a  Tuckers  Black.  Vol.  1  297. 

6  2  Story  on  Const.  §  1880.  c  2  Vol.  Com.  17. 

68 


538  TEE  FEEEDOM   OF   SrEECII  AKD   OF  THE  FEESS. 

conduct  of  iniblicmen,  and  of  candidates  for  public  favor,  is  deemed 
essential  to  the  judicious  exercise  of  the  right  of  suffrage,  and  of 
that  control  over  their  rulers,  Avhich  resides  in  the  free  people  of 
the  United  States.  It  has  accordingly  become  a  constitutional 
prmciple  in  tliis  country,  that  everj^  citizen  may  freely  speak,  write, 
and  publish  his  sentiments,  on  all  subjects,  being  responsible  for 
the  abuse  of  that  right,  and  that  no  law  can  rightfully  be  passed 
to  restrain  or  abridge  the  freedom  of  speech  or  the  press." 

It  is  neither  more  nor  less  than  an  expansion  of  the  great  doc- 
trine brought  into  operation  in  the  law  of  libel,  that  every  man 
shall  be  at  liberty  to  pubhsh  what  is  true,  with  good  motives,  and 
for  justifiable  ends.  And  with  this  reasonable  limitation,  it  is  not 
only  right  in  itself,  but  it  is  an  inestimable  privilege  in  a  free  gov- 
ernment. Without  such  a  limitation,  it  might  become  the  scourge 
of  the  republic,  first  denouncing  the  principles  of  liberty,  and  there- 
by rendering  the  most  virtuous  patriots  odious,  through  the  teiTors 
of  the  press,  introducing  despotism  in  its  worst  form,  a 

That  this  amendment  was  intended  to  secure  to  every  citizen 
the  right  to  speak,  or  write,  or  print,  whatever  he  might  please, 
without  any  responsibility,  public  or  private  therefor,  is  a  suppo- 
sition too  wild  to  be  indulged  in  by  any  rational  man.  This  would 
be  to  allow  to  every  citizen  a  right  to  destroy  at  his  pleasure,  the 
reputation,  the  peace,  the  property,  and  even  the  personal  safety, 
of  every  other  citizen.  A  man  might,  out  of  mere  malice  and 
revenge,  accuse  another  of  the  most  infamous  crimes,  might  excite 
against  him  the  indignation  of  all  his  fellow  citizens  by  the  most 
attrocious  calumnies ;  might  chsturb,  nay  overturn  all  his  domestic 
peace,  and  embitter  his  parental  affections ;  might  inflict  the  most 
distressing  punishments  upon  the  weak,  the  timid,  and  the  inno- 
cent ;  might  prejudice  all  a  man's  civil,  and  political,  and  private 
rights  ;  might  stir  up  sedition,  rebellion,  and  treason  even  against 
the  government  itself,  in  the  wantomiess  of  his  passions,  or  the 
corruption  of  his  heart.  Civil  society  could  not  go  on,  under  such 
circumstances.  Men  would  then  be  obliged  to  resort  to  private 
vengeance,  to  make  up  for  the  deficiencies  of  the  law ;  and  assassi- 
nations, and  savage  cruelties  would  be  perpetuated  with  all  the 
frequency  belonging  to  barbarous  and  brutal  communities,  h 

a  2  story,  §  1880.  b  Id. 


THE  niEEDOM   OF   SPEECH   AND   OF  THE  PRESS.  539 

Tlierc  is  no  other  reasouable  constniction  to  be  given  to  this 
clause  in  the  amended  constitution,  than  to  hold  it  to  mean  a 
freedom  of  speech,  and  of  the  press,  as  broad  as  existed  at  com- 
mon law,  ■\vhon  the  constitution,  which  guaranteed  it,  was  adopted. 
It  was  such  freedom,  that  was  intendetl  to  be  secured ;  and  it  was 
not  intended  that  the  legislature  should  possess  the  power  to 
restrict  it,  except  in  those  cases  of  publications  injurious  to  private 
character,  or  to  public  morals  or  safety,  which  come  strictly  within 
the  reasons  of  civil  or  criminal  liability  as  then  existed  also  at 
common  law,  but  where,  nevertheless,  the  common  law  as  we  had 
adopted  it,  failed  to  provide  a  remedy,  as  for  instance,  at  the 
time  of  the  adoption  of  this  provision.  At  common  law,  it  was  not 
actionable,  (nor  indeed,  in  this  state,  is  it  now,)  to  imputo  the 
want  of  chastity  to  a  female,  without  proof  of  special  damage.  It 
certainly  would  not  be  held  to  be  a  constitutional  abridgment  of 
the  freedom  of  speed  i,  if  the  legislature  should  enact  a  law  creat- 
ing liability  to  an  action  and  to  damage,  for  the  utterance  of  such 
a  charge.  It  is  the  charge  of  a  grievous  wrong,  of  all  others,  most 
destructive  to  the  female  character ;  and  no  reason  can  be  found 
in  public  policy,  for  protecting  the  utterance  of  such  a  wrong. 
Many  other  analagous  cases  may  be  stated.  The  constitutional 
provisions  do  not  prevent  the  modifications  of  the  common  law 
rules  of  liabiUty  for  libels  and  slanders,  but  they  would  not  permit 
the  bringing  of  new  cases  Avithin  those  niles,  when  they  do  not 
rest  upon  the  same  reasons,  a 

It  is  extremely  difficult  to  draw  a  line  which  may  be  adopted  as 
a  rule,  which  shall  distinguish  between  protection  or  liberty,  upon 
the  one  hand,  and  licentiousness  upon  the  other.  These  two 
extremes,  of  liberty  and  licentiousness,  must  not  be  confounded. 
They  are  not  identical,  nor  intended  to  be  alike  secured  in  the  con- 
stitution. "  It  is  a  weU  understood  commentary  on  this  provision 
for  the  liberty  of  the  press,  that  it  was  intended  to  prevent  such 
previous  restraints  upon  publications  as  had  been  practiced  by 
other  governments ;  and  in  early  times  Jiere,  to  stifle  the  eftbrts  of 
patriots  towards  enlightening  their  fellow  subjects  upon  the  rights 
and  duties  of  rulers.  The  liberty  of  the  press  was  to  be  unre- 
strained, but  he  who  used  it,  was  to  be  responsible  in  the  case  of 

a  Cooley  on  Const,  iSO. 


540       THE  FEEEDOM  OF  SPEECU  AND  OF  THE  PEESS. 

its  abuse  ;  like  the  right  to  bear  arms,  or  to  keep  fire  arms ;  wliicli 
does  not  protect  him  who  uses  them  from  aimoyance  or  destruc- 
tion." a 

"  The  common  hiw  is,  therefore,  left  unimpaired  by  the  consti- 
tution ;  ■"■  ^'  and  3'et  there  are  some  exceptions  to  this  as  a  general 
ride.  The  excej)tions  are  all  founded  in  a  regard  to  certain  public 
interests,  -which  are  of  more  importance  than  the  character  or 
tranquihtj  of  any  individual.  All  proceedings  in  legislative  assem- 
blies, whether  by  speech,  written  documents  or  otherwise,  are 
protected  from  sciiitiny  elsewhere  than  in  those  bodies  themselves, 
because  it  is  essential  to  the  maintenance  of  public  liberty,  that  in 
such  assemblies,  the  tongue  and  the  press,  should  be  wholly  un- 
shackled." 

"  So  proceedings  in  courts  of  justice,  in  which  the  reputation  of 
individuals  may  be  involved,  are  to  be  free  from  future  animad- 
versions, because  the  investigation  of  right,  demands  the  utmost - 
latitude  of  inquiry',  and  men  ought  not  to  be  deterred  from  prose- 
cuting or  defending  them  by  fear  of  punishment  or  damages.  Yet 
in  these  instances,  if  this  necessary  indulgence  is  abused  for  mali- 
cious purposes,  a  pretence  only  being  made  of  the  forms  of  judicial 
process,  the  party  so  conducting  himself  is  amenable  to  the  law.'' 

"  The  right  also  of  complaining  to  any  public  constituted  body 
of  the  malversation  or  oppressive  conduct  of  any  of  its  officers  or 
agents,  with  a  viev/  to  redress  for  actual  wrong,  or  the  removal  of 
an  unfaithful  officer,  may  be  justified,  because  the  case  will  show 
that  the  proceeding  does  not  arise  fi'om  malicious  motives,  or  if  it 
does,  because  the  common  interest  requnes  that  such  representa- 
tions should  be  free." 

"  And  there  are  cases  of  mere  private  import,  such  as  an  honest, 
though  mistaken  character  of  a  servant,  which,  when  requested  by 
any  one  having  an  interest,  the  law  considers  innocent,  or  privi- 
leged. These  cases  are  all  provided  for  by  the  common  law,  and 
they  go  far  to  render  harmless  the  much  decried  rule,  that  truth  is 
no  defence  in  a  prosecution  for  a  libel." 

So  too,  "  if  a  minister  of  the  gospel  should  be  guilty  of  gi-oss 
immoralities,  and  one  of  his  parish  should  complain  to  the  church 
in  order  that  an  inquiry  might  be  instituted ;  or,  if  a  candidate  for 

a  Commonwealth  v.  Blanding  3  Pick.  E.  313  3H 


THE  FREEDOM   OF  SFEECII   AND   OF  THE    PRESS.  5-11 

the  miuistry  should  from  vicious  habits  be  unfit  for  the  statiou  he 
seeks ;  siucc  all  are  mterested  in  the  pmity  of  the  ministerial 
character,  information  to  those  whose  duty  it  is  to  determine  his 
qualificatious,  would  not  be  libMous,  if  communicated  in  a  spirit 
of  truth  and  candor,  a 

These  are  the  exceptions,  "  but  no  state  of  society  could  be  more 
deplorable  than  that  which  Avould  admit  an  indiscriminate  right 
in  every  citizen  to  arraign  the  conduct  of  every  other,  before  the 
pubhc,  in  newspapers,  in  hand-bills  or  other  modes  of  publication, 
not  only  for  crimes,  but  for  faults,  foibles,  deformities  of  mind,  or  of 
person.  Even  admitting  all  such  allegations  to  be  true ;  v/hen  the 
accusation  is  made  by  public  bodies  or  officers  whose  duty  it  is 
by  law  to  detect  and  prosecute  offences  ;  the  charge  and  investiga- 
tion are  submitted  to,  and  no  spirit  of  revenge  is  produced ;  but, 
if  private  intermeddlers,  assuming  the  character  of  reformers, 
should  have  the  right  to  become  public  accusors,  and  when  called 
to  account,  to  defend  themselves  by  breaking  into  the  circle  ol 
friends,  families,  children,  and  domestics,  to  prove  the  existence 
of  errors  or  faults  which  may  have  been  overlooked  or  forgiven 
where  they  were  most  injurious.  The  man  who  is  thus  accused 
without  lawful  process,  might  be  expected  to  avenge  himself  by 
unlawful  means ;  and  duels  and  assassinations,  would  be  the  com- 
uu)u  occurrences  of  the  times.  Instances  are  reccollected  where 
violence  and  even  death  has  ensued  from  such  proceedings.  It 
was  a  wise  regard  to  these  evils,  that  the  common  law  has  put  a 
check  upon  the  licentiousness  of  the  press,  and  the  expression  of 
opinion  by  writing,  painting  etc.,  when  the  effect  and  object  is  to 
blacken  the  character  of  any  one,  or  to  disturb  his  comfort ;  the 
public  good  not  being  the  end  and  pm*poseof  such  pubhcatiou, 
or  if  that  is  professed,  the  pubhc  peace  requiring  a  different  mode 
of  accusation."  h 

"  The  constitutional  liberty  of  speech,  and  of  the  press,  as  we 
understand  it,  in  general  terms,  implies,  a  right  to  freely  utter  and 
publish  whatsoever  the  citizen  may  please,  and  to  be  protected 
against  any  responsibility  for  the  publication,  except  so  far  as  such 
publications  fi'om  their  blasphemy,  obscenity,  or  scandalous  char- 
acter, may  be  a  pubhc  offence ;  or,  as  by  then-  falsehood  and  mahce, 

aid.  bia. 


542       THE  FREEDOM  OF  SFEECH  AND  OF  THE  PRESS. 

tlibj  may  mjuriously  affect  the  private  character  of  indi\'iduals.  a 
The  exceptions  and  qualifications  of  tliis  rule,  beyond  those  given 
abo\e,  partake  of  the  character  of  questions  of  practice,  and  are 
not  i.vithiu  the  general  scope  of  this  work. 

The  common  law  offence  of  libels  against  the  government  or 
the  constitution,  on  the  ground  of  their  criminality  in  the  excite- 
ment of  tumult  and  disaffection,  or  a  revolutionary  spirit,  have 
fallen  into  disfavor.     The  general  spirit  of  freedom  and  independ- 
ence, is  in  favor  of  allowing  the  right  to  every  citizen  to  give  to  the 
acts  and  measures  of  public  men,  and  measures  of  public  policy, 
the    most  full   and  free  discussions ;  and  great  allowance  is  to 
be   made  in   times   of  political  excitements  for  the  criticisms  of 
what  are  called  the  "  outs,"  in  the  review  of  the  policy  measures, 
and  administrations  of  the  "  ins."     Sharp  criticisms,  ridicule,  and 
exhibitions  of  deep  feeling,  such  as  a  sense  of  injustice  for  supposed 
wrongs  engenders,  are  tolerated,  and  submitted  to,  as  being  wiser 
than  a  resort  to  a  more  vindictive  measure  of  prosecution,  on  the 
ground  that  a  conservative  public  sentiment  is  always  ready  to  do 
justice,  and  is  sufficient  to  correct  the  abuse.     It  is  regarded  as 
far  more  magnanimous,  equally  certain,  and  is  more  satisfactory 
to  the  injured  party,  than  the  vexatious  resort  to  tbe  vengeance  of 
the  law.     Indeed  the  occasions  are  not  infrequent,  when  criticisms 
upon  public  ofiicers,  upon  their  actions,  character,  and  motives,  are 
recognized  as  legitimate,  and  large  latitude,  and  great  freedom 
of  expression  is  not  only  permitted,  but  is  to   be   desired,  so 
long  as  good  faith  dictates  the  communication.     There  are  cases, 
where  it  is  clearly  the  duty  of  every  one,  to  speak  with  boldness 
and  freedom,  what  he  feels  it  his  duty  to  say,  concerning  not  only 
public  officers,  but  concerning  those  who  are  presented  for  public 
positions.     Through  the  ballot  box  the  electors  approve  or  con- 
demn those  who  ask  for  their  suffrages,  and  though  tliis  is  often 
a  very  erring  standard,  yet  it  is  our  own  chosen  system ;  and  how- 
ever emphatic  this  voice  may  speak  in  condemnation  or  approval 
of  the  condemnation  uttered  by  the   press,  no  act'ion  lies  for  the 
publication,  h 

a  Cooley  on  Const.  Lim.  422. 

h  Howard  v.  Thompson,  21  Wend-  319  &c.  VauWick  v.  Agpiuwall,  17  N.  Y.  191 ; 
Thorn  v.  Blanchard,  5  John,  528-530;  Hunt  v.  Bennett,  19  N.  Y.  173;  Hoot  v.  King, 
4  Wend.  113. 


THE  FREEDOM  OF  SPEECH  AND  OF  THE  TRESS.       543 

Perhaps  tlicre  is  no  question  of  law,  more  unsettled  by  general  and 
definite  rules,  than  that  of  the  law  of  lil)el  in  our  courts;  and  some 
confusion  in  practice  has  grown  out  of  the  thficrencc  in  the  admin- 
istration of  the  law  between  Ubels  in  civil,  and  libels  in  criminal  ac- 
tions. In  trials  of  the  latter  class,  as  will  be  seen  by  the  consti- 
tution of  New  York,  the  jury  have  a  right  to  determine  the  law 
and  the  fact,  a  but  it  cannot  be  denied  that  the  cases  lack  uniform- 
ity in  more  than  one  particular,  and  that  they  are  not  quite  satis- 
factory to  pohtical  public  journalists  who  claim  the  greatest  latitude 
and  most  liberal  construction  of  the  clause  in  this  respect  in  the 
federal  constitution. 

Judge  Cooley,  in  his  work  on  Constitutional  Limitations  com- 
plams  of  a  peculiarity  of  views  of  the  New  York  courts.  He  says, 
"  T.he  narrowness  of  any  such  rule,  (especially  the  rule  in  Eoot  v. 
King),  consists  in  its  assumption,  that  the  private  character  of  a 
public  officer  is  something  aside  from,  and  not  entering  into  or 
influencing,  his  public  conduct,  and  that  a  thorougldy  dishonest 
man  may  be  a  just  minister,  and  that  a  judge  who  is  corrupt  and 
debauched  in  private  life,  may  be  pure  and  upright  in  his  judgments ; 
in  other  words,  that  an  evil  tree  is  as  lilvcly  as  any  other  to  bring 
forth  good  fruits."  Any  such  assumption,  he  says,  is  false  to  human 
nature,  and  the  pubUc  have  a  right  to  assume  that  a  corrupt  life  will 
influence  pubhc  conduct,  however  plausibly  it  may  be  glossed  over. 
They  are  therefore  interested  in  knowing  what  the  character  of 
their  pubhc  servants  is,  as  well  as  that  of  persons,  offering  them- 
selves for  then'  suffrages.  If  so,  it  would  seem  that  there  should 
be  some  pri^dlege  of  comment ;  that,  that  privilege  could  only  be 
hmitcd  by  good  faith  and  just  intention,  and  of  these,  a  jury  might 
judge,  taking  into  account  the  nature  of  the  charges  made,  and  the 
reasons  which  existed  for  making  them,  h 

We  have  given  the  above  views  of  an  able  "vniter  upon  this 
|)oint  rather  to  illustrate,  the  statement  above  made  ;  that  in  dif- 
f(3rcnt  states,  under  different  statutes,  and  with  difierence  of  judi- 
cial views  of  latitude  of  this  constitutional  protection,  there  is  not 
an  entire  unifonnity  of  rale,  among  the  states.  To  attempt  to 
show  the  variations  of  this  rule  in  the  several  states,  and  the  settled 

a  Coustitutiou  of  N.  Y;  Art  1  §  8.  and  cases  supra. 
b  Cooley  on  Const.  440 


544  THE  FREEDOM  OF  SPEECH  A2JD  OF  THE  PEESS. 

i-ule  in  each,  would  swell  this  volume  into  a  digest,  or  work  of 
practice,  and  is  hardly  called  for ;  therefore,  our  own  \dews  as 
above  expressed,  is  intended  to  be  those  only  of  the  settled  law  in 
this  state,  aud  which  may  be  gathered  from  the  cases  cited  in 
the  notes. 

But  to  these  iniles,  there  will  also  be  found  exceptious  in  a  class 
of  cases,  where,  from  reasons  of  public  policy,  certain  utterances 
are  so  absolutely  protected,  that  no  inquiiy  as  to  motives,  is  tole- 
rated in  actions  for  libel  or  slander.  A  single  case  may  be  referred 
to,  to  prove  the  exception.  No  action  for  slander  or  hbel  can  be 
maintained  against  a  pai-ty,  called  as  a  witness  in  a  judicial  pro- 
ceeding, for  testimony  given  as  such  witness  which  may  reflect 
upon  the  character  of  a  party,  and  which  might  otherwise  be 
regarded  as  slanderous,  even  though  malice  be  charged  in  the 
utterance ;  though  false  accusations  made  voluntarily,  in  the 
papers,  affidavits  and  other  proceedings,  preliminary  to  the  cona- 
mencement  of  an  action,  or  to  other  judicial  proceedings  for  the 
accusation  of  crime,  are  not  absolutely  protected.  Prima  facie, 
they  are  protected,  but  actual  mahce  may  be  averred  and  proved; 
and  if  proved,  the  privilege  does  not  protect,  a  Wanton  abuse  is 
not  protected  by  law ;  the  privity  is  not  to  be  abused  on  the  part 
of  the  witness,  nor  is  a  party  to  be  permitted  to  utter  slanderous 
words  against  the  witness  by  way  of  insult,  and  not  in  the  legiti- 
mate course  of  his  defence. 

Not  materially  different  from  these  privileges  and  this  protec- 
tion, and  coming  under  this  same  constitutional  provision  that 
"every  citizen  may  freely  speak,"  &c.;  is  the  right  of  counsel  who 
represent  parties  in  judicial  proceedings.  The  value  of  this  right 
to  the  counsel,  and  to  the  party  whom  he  represents,  depends  nearly 
altogether  upon  the  freedom  with  which  he  is  allowed  to  act,  to 
speak,  to  comment  upon  facts,  ch'cumstances,  character  and  con- 
duct of  witnesses  and  parties  whose  action  or  motives  may  be 
traced  or  deduced  from  the  evidence,  or  fi'om  the  surroundings  and 
circumstances  connected  directly,  or  remotely  with  the  subject  of 

a  Burlingame  v.  Eurlir.game,  8  Cowen  141;  Jarvis  v.  Hathawaj',  3  John-  180; 
Gilbert  V.  The  People,  1  Denio  41;  McGlaugliy  v.  Wetmore,  6  John.  82;  Eector 
V.  Smith,  11  Iowa,  3G2  ;  Bradley  v.  Heath,  12  Pick.  163  ;  Kean  v.  McLanglen,  2 
Searg.  &  Maule,  471;  Ilosmer  v.  Lovelaud,  19  Barb.  Ill;  State  v,  Burnham,  9  N. 
H.  34. 


THE  FREEDOM  OF  srEECII  AND  OF  THE  TRESS.       545 

the  judicial  inqiiiiy  in  which  he  is  called  to  act.  The  law  justly 
and  necessarily,  in  view  of  the  importance  of  the  privilege,  allows 
very  great  liberty  in  such  cases  to  counsel,  and  surrounds  them 
with  a  protection  that  is  a  complete  shield  in  all  cases,  excei)t  iji 
those,  where  the  counsel  has  abused  his  legal  privilege,  by 
vising  the  occasion  to  gratify  his  private  malice,  and  unnecessarily 
heaping  slander  u})on  sonic  one  connected  with  the  proceeding,  a 
"The  question  therefore  in  such  cases,  is  not  Avhether  the  Avords 
spoken  are  true ;  not  whether  they  are  actionable  in  themselves ; 
but  whether  they  were  spoken  in  the  course  of  judicial  proceedings ; 
and  whether  they  are  relative  and  pertinent  to  the  cause  or  sub- 
ject of  the  inquiry.  And  in  determining  what  is  pertinent,  much 
latitude  must  be  allowed  to  the  judgment  and  discretion  of  those 
who  are  intrusted  with  the  conduct  of  a  cause  in  court ;  and  a 
much  larger  allowance  made  for  the  ardent  and  excited  feelings, 
with  which  a  party  or  counsel,  (who  naturally,  and  almost  neces- 
sarily identifies  himself  with  his  client,)  may  become  animated, 
by  constantly  regarding  one  side  only  of  an  interesting  con- 
troversy, in  which  the  dearest  rights  of  such  party  may  become 
involved.  And  if  these  feelings  sometimes  manifest  themselves  in 
strong  inveoiives,  or  exaggerated  expressions  beyond  what  the  oc- 
casion would  strictly  justify,  it  is  to  be  recollected,  that  this  is  said 
to  or  in  the  i)resence  of  a  judge  who  hears  both  sides ;  in  w^hose 
mind  the  exaggerated  statement  may  be  at  once  controlled,  and 
met  by  e-sidence  and  argument  of  a  contraiy  tendency  from  the 
other  party ;  and  who,  from  the  impartiality  of  his  position,  will 
naturally  give  to  an  exaggerated  assertion,  not  wan-anted  by  the 
occasion,  no  more  weight  than  it  deserves.  Still  this  privilege 
must  be  restrained  by  some  limit,  and  w^e  consider  that  limit  to  be 
this  :  that  a  party  or  counsel  shall  not  avail  himself  of  his  situa- 
tion to  gratify  private  malice  by  uttering  slanderous  expressions, 
either  against  a  party,  witness  or  third  person,  Avhich  have  no  rela- 
tion to  the  cause  or  subject  matter  of  the  inquiry.  Subject  to  this 
restriction,  it  is  on  the  whole  for  the  public  interest,  and  best  cal- 
culated to  subserve  the  purposes  of  justice,  to  allow  counsel  full 
freedom  of  speech  in  conducting  their  cases,  and  in  advocating  the 
rights  of  their  constituents  ;  and  this  freedom  of  discussion  ought 

a  Hoar  v.  Wood,  3  Met.  107;  McMillan  v.  Barcla,  1  Biuncy,  ISG. 
09 


546  THE  FREEDOil  OF  SPEECH  AND   OF  THE  FEESS. 

not  to  be  impaired  by  numerous  and  refined  distinctions,  a  In 
the  Court  of  Errors  in  this  state,  it  was  held  that  this  privilege  of 
counsel  in  advocating  the  rights  of  his  cHent,  and  of  the  jM^iy  him- 
self ■u'hen  he  manages  his  own  cause  in  a  judicial  proceeding,  is  as 
broad  as  that  of  a  legislative  body,  however  false  and  malicious 
may  be  a  charge  made  by  the  coimsel,  or  the  party  upon  such  an 
occasion  afiecting  the  rejiutation  of  another  ;  and  an  action  of  slan- 
der will  not  lie,  provided  that  what  is  said,  be  pertinent  to  the 
question  under  discussion,  h  But  it  was  also  held,  that  proving  the 
defendant  knew  the  charge  to  be  false,  would  unquestionably  be 
evidence  of  express  malice,  and  would  destroy  the  defence  in  this 
class  of  cases ;  and  that  the  plaintiff  in  such  case,  has  a  right  to 
prove  express  malice. 

The  privileges  of  a  legislator,  are  expressly  protected  by  both 
national  and  state  constitutions.  It  would  seem,  that  something 
beyond  the  common  right  of  freedom  of  speech  was  intended. 
While  counsel,  and  parties,  and  other  citizens  may  be  held  to  ac- 
count for  an  abuse  of  this  privilege,  the  protection  to  the  legislator, 
would  seem  from  the  terms  employed,  to  be  an  absolute  freedom 
fi'om  liability  under  all  circumstances.  "  For  any  speech  or  debate 
in  either  house  of  the  legislature,  the  members  shall  not  be  ques- 
tioned in  any  other  place."  This  is  a  broader  and  more  complete 
immunity  than  is  given  to  others.  Doubtless  for  an  abuse  of  this 
privilege,  he  is  amenable  to  the  body  of  which  he  is  a  member, 
and  can  be  expelled  therefrom,  but  to  no  other  punishment,  for 
freedom  of  debate. 

"  The  privilege  secured  by  this  constitutional  provision,  though 
of  a  personal  nature,  is  not  so  much  intended  to  protect  the  mem- 
bers against  prosecution,  for  their  own  individual  advantage,  as  to 
support  the  rights  of  the  people,  by  enabling  their  representatives 
to  execute  the  functions  of  their  office  without  fear,  eitber  of  civil 
or  criminal  prosecutions  ;  and  therefore  it  ought  not  to  be  construed 
strictly,  or  confined  strictly  within  the  literal  meaning  of  the  words 
in  which  it  is  expressed  ;  but  to  receive  a  liberal  and  broad  con- 
struction, commensurate  with  the  design  for  which  it  was  estab- 
lished." c     It  is  accordingly  held,  that  this  privilege  secures  every 

a  Opinion  of  Sh.iw,  Cli.  .J.,  in  Hoar  v.  Wood,  3  Metealf,  197. 

h  Hastings  v.  Lush,  22  Wend.  410.  c  Coffin  v.  Coffin,  4  Mass.  1. 


THE   FREEDOM   OF  srEECII   AND   OF  THE   TRESS.  547 

member  an  immuuity  from  prosccutious  for  any  thing  said  or  done 
by  him  as  a  representative  of  the  people  in  the  exercise  of  the 
functions  of  that  office  ;  -whether  such  exercise  is  regular  according 
to  the  rules  of  the  assembly,  or  irregular  and  against  tluiir  iiiles ; 
whether  the  nieiiiber  be  ^vithin  his  place,  within  the  house  delivering 
an  opinion;  uttering  a  si)eech  ;  engaging  in  debate  ;  giving  his  vote  ; 
making  a  written  report ;  communicating  information,  either  to 
the  house  or  to  a  member ;  or  whether  he  is  out  of  the  house  sitt- 
ing in  committee,  and  engaged  in  debating  or  voting  therein,  or 
in  drawing  up  a  report  to  be  submitted  to  the  assembly  ;  in  short, 
the  privilege  m  question  secures  the  members,  of  a  legislative 
assembly  against  all  prosecutions,  whether  civil  or  criminal,  on 
account  of  anything  said  or  done  by  them,  during  the  session,  re- 
sultmg  from  the  nature,  and  in  the  execution  of  their  office.  It  is 
hardly  necessary  to  add,  that  as  a  legislative  assembly  has  no  ex- 
istence or  authority,  as  such,  except  when  regidarly  in  session,  the 
members  cannot  claim  this  privilege  for  anything  said  or  done  at 
any  other  time.  It  is  to  be  observed,  however,  that  the  mere 
temporary  adjournments,  for  the  convenience  of  the  members,  and 
not  for  the  purpose  of  putting  an  end  to  the  session,  are  in  fact 
continuations  of  and  not  terminations  of  it."  a 

"  But,  though  a  member,  in  the  exercise  of  the  functions  of  his 
office  may  speak,  -Avrite,  or  vote  in  any  manner  that  he  deems 
proper,  and  may  consequently  give  utterances  with  impunity,  with 
what  would  subject  a  private  person  to  a  prosecution  for  Hbel  or 
slander ;  yet  he  will  not  therefore  be  juatified  in  printing  and  pub- 
lishing what  he  has  spoken,  if  it  contains  matter  injurious  to  the 
character  of  an  individual ;  not  even  if  the  publication  is  intended 
to  correct  a  misrepresentation  contained  in  the  report  of  his  speech 
previously  published  without  his  authority  or  sanction."  h 

The  representative  is  not  indebted  to  the  will  or  pleasure  of  the 
house  for  this  privilege  ;  he  derives  it  not  from  them,  but  from  the 
highest  source  of  power,  the  will  of  the  people  expressed  in  the 
constitution,  which  is  paramount  to  the  will  of  cither,  or  of  both 
branches  of  the  legislature. 

While  these  protections  are  secured  to  citizens,  parties,  counsel, 

a  Curtis  Law  aud  Pr.  of  Assemblies,  §  G03. 
b  Id.  §  GOl. 


54:8        '        THE  FEEEDOM  OF  SFEECH  AND  OF  THE  PRESS, 

;md  legislators,  from  motives  of  high  public  policy  upon  the  one 
hand,  neither  the  constitution,  the  law,  or  public  pohcy,  will  tolerate 
the  destruction  of  private  character  upon  the  other,  by  a  pubhc  pub- 
lication of  the  procecchngs  of  the  body  of  the  assembly,  or  courts, 
to  the  injury  of  the  character  of  the  citizen.     It  does  not  at  all 
follow,  that  because  counsel  may  speak  freely  Avhat  he  believes,  or 
what  he  is  instructed  to  say,  m  court,  that  he  may  publish  his  speech 
containing  slanderous  imputations  out  of  court.   The  first  was  allow- 
ed in  order  to  discharge  a  high  duty  to  a  client ;  but  with  the  ending 
of  the  suit,  that  duty  was  at  an  end ;  the  subsequent  publicity 
must  be  at  his  individual  peril,  if  it  be  unfair,  unjust,  or  injurious 
to  another ;  and  this  rule  applies  equally  to  the  publication  of  judi- 
cial proceedings.    Though  a  fair  and  impartial  account  of  them  is 
justifiable,  and  favored  in  law;  an  unfair  or  injurious  report  reflect- 
ing upon  the  character  of  the  citizen,  to  his  prejudice,  is  not  privi- 
leged as  against  the  injured  party.     The  publisher  must  find  his 
justification  not  in  the  j^riuilegc,  but  in  the  truth  of  the  publication,  a 
It  is  even  libelous  to  publish  a  correct  account  of  judicial  proceed- 
ings, if  accompanied  with  comments  and  insinuations  tending  to 
asperse  a  man's  character,  h     The  report  must  be  confined  to  the 
actual  proceeding  in  court,  and  must  contain  no  defamatory  obser- 
vations or  comments  from   any  quarter  whatever,  in  addition  to 
what  forms  ^-trictly  and  properly  the  legal  proceedings,  c     The 
case  was  of  privilege  of  a  member  of  the  House  of  Commons  in 
England,  and  was  plead  to  an  action  for  libel  by  a  private  citizen,  d 
It  was  the  report  published  by  order  of  the  house  for  the  members 
of  the  body,  and  also  for  sale,  which  report  contained  reflections 
upon  the  character  of  the  plaintiff.     Lord  Denman  said,  "Most 
willingly  would  I  decline  to  enter  upon  an  in  uiry  which  may  lead 
to  my  differing  from  that  great  and  powerful  assembly.     But  Avhen 
one  of  my  fellow  subjects,  presents  himself  before  me  in  this  court 
demanding  justice  for  an  injury,  it  is  not  at  my  option  to  grant  or 
withhold  redress.     I  am  bound  to  afford  it,  if  the  law  declares  him 
entitled  to  it.     The  desi^ion  of  the  court  was  imanimous  that  the 
privilege  did  not  exist  in  regard  to  tho^e  copies  of  the  report  sold 

a  Stanley  v.  Wc^-b.  4  Siuui.  21. 

/;  Thomas  V.  Croswoll,  7  John  2G4;  Coinmomvealtli  v.  Bliinding,  3  Pick.  304. 

c.  Kiiif,'  V.  Carlisle,  3  B.  tV  A.  1G7. 

d  Stockdale  v.  Hemsiu-J,  9  Adol  A  Ellis,  1 ;  Pex  v.  Crecvy,  1  Maule  X-  Selwiu,  273. 


THE   FREEDOM   OF  SFEECII   .VXD   OF  THE   TRESS.  519 

to  otliers."  "  Tlio  protection  of  tin;  chiiraetor  of  the  citizen,  tri- 
imiplicd  over  a  'privik<je,  claimed  to  have  e>dsted  for  a  period  so 
long,  that  it  had  become  hoary  with  iige."  a  The  editor  of  a  news- 
paper lias  a  right  to  publish  the  fact  that  an  individual  has  been 
arrested,  and  upon  what  charg>^,  but  ho  has  no  right  -while  the 
charge  is  in  the  coui*se  of  investigation  ])eforc  tlie  magistrate,  to 
assume  that  the  person  accused  is  guilty,  or  to  Iiold  him  out  to  the 
world  as  such,  h  Nor  is  such  publication,  often,  less  a  public 
offence.  If  the  nature  of  the  case  is  such,  as  to  make  it  improper 
that  the  proceedings  should  be  spread  before  the  public  because 
of  their  immoral  tendency,  or  of  the  blasphemous  or  indecent 
chai'acter  of  the  evidence  exhibited,  the  i)ublication,  though  impar- 
tial and  full,  will  be  a  pubhc  offence  and  punishal)le  accordingly,  c- 

So  ex  ixirte  proceedings,  or  mere  preliminary  examinations, 
though  they  may  perhaps  be  called  judicial,  arc  not  privileged,  and 
when  they  reflect  in jmiously  upon  individuals,  the  publisher  derives 
no  protection  from  theu'  having  been  already  delivered  in  court,  d 
Their  tendency  is  to  prejudge  those  whom  the  law  still  presumes 
to  be  innocent,  and  to  poison  the  sources  of  justice.  It  is  of  infi- 
nite importance  to  all,  that  whatever  has  a  tendency  to  prevent  a 
fair  trial,  should  be  guarded  against.  Every  one  is  liable  to  be 
questioned  in  a  court  of  law,  and  called  upon  to  defend  his  life  and 
character.  "NVe  would  then  wish  to  meet  a  court  or  a  jury  of  our 
country  with  unbiassed  minds. 

If  anything  is  more  imporiant  than  another  in  the  administra- 
tion of  justice,  it  is,  that  jmymen  should  come  to  the  trial  of  those 
persons  on  whose  guilt  or  innocence  they  are  to  decide,  with  minds 
pure  and  miprejudiced.  Is  it  possible  they  should  do  so,  after 
Ua^^Ilg  read  for  weeks,  and  months  before,  ex  pcuie  statements  of 
the  emlence  against  the  accused,  wliicli  the  latter  had  no  opportu- 
nity to  disprove  or  controvert  ?  By  then-  o\m  public  declarations, 
we  know  that  the  minds  of  jmymen  are  often  preoccupied  by  such 
statements,  and  that  they  proceed  with  terror  to  the  discharge  of 

a  Ciimiibeir  Lives  of  Chancellors,    29;5;  King  v.  Abiuj^don,  1  Kspumss  E.  22G. 
h  Usher  v.  Severance,  2  Appletou,  9. 

c  Rex  V.  Carlisle,  3  B.  &  A.  1G7;  Eex  v.  Croevy,  1  il.  &  S.  273. 
d  Stanley  v.  Webb,  4  Saml.  21;  Huff  v.  Bennett,   Id.  120;  Matthews  v.  Beach,  5 
Id.   256. 


550       THE  FREEDOM  OF  SFEECH  AND  OF  THE  TRESS. 

their  duty,  from  the  apprehension  that  an  antecedent  bias  may 
influence  then-  verdict.  These  publications  tend  ahke  to  the  con- 
viction of  the  mnocent,  and  the  acquittal  of  the  giulty. 

The  pubhcation  of  proceedings  in  courts  of  justice  where  both 
sides  are  heard,  and  matters  aveJinaJhj  determuied,  is  salutary,  and 
therefore  pennitted.  The  pubhcation  of  these  prelim maiy  pro- 
ceedings has  a  tendency  to  pervert  the  pubhc  mind,  and  to  dis- 
turb the  course  of  justice  ;  and  it  is  therefore  illegal.  Yv^hat  is  in- 
jui-ious  to  individuals  and  to  the  community,  the  law  considers 
criminal,  a 

A  distinction  has  been  attempted  to  have  settled  as  law,  between 
editors  of  public  newspapers  and  other  persons,  making  the  former 
an  exception  to  the   general  i\ile,  on  account  of  the  peculiarity  of 
their  occupation.     It  was  clauned,  that  it  was  their  business  to 
disseminate  useful  knowledge  among  the  people  ; — to  pubhsh  such 
matters  relating  to  correct  events  of  the  day,  happening  at  home 
or  abroad  as  fell  within  the  sphere  of  their  observation,  and  as 
the  public  curiosity  demanded  ;— and  that  it  was  impracticable  for 
for  them  at  all  times,  to  ascertain  the  truth  or  falsehood  of  the 
various  statements  contained  in  other  journals,  and  it  was  argued, 
that  if  the  law  were  not  thus  indulgent,  some  legislative  relief 
might  become  necessary  for  the  protectionof  this  class  of  citizens. 
The  Supreme  Court  of  this  state,  in  a  case  wdiere  this  argument 
was  presented,  said,  b  "  Undoubtedly  if  it  be  necessary  to  pamper  a 
depraved  appetite  or  taste,  (if  there  be  any  such)  by  a  republication 
of  all  the  falsehoods  and  calumnies  upon  private  character  that 
may  find  their  way  into  the  press — to  give  encouragement  to  the 
widest  circulation  of  these  vile  and  defamatory  pubhcations  by  pro- 
tecting the  retailers  of  them— some  legislative  interferance  will 
be  necessaiy  ;  for  no  countenance  can  be  found  for  the  irrespons- 
ibility claimed  in  the  common  law.     That,  reprobates  the  hbeller, 
whether  author  or  pubHsher,  and  subjects  him  to  both  civil  and 
criminal  responsibility.     His  offence  is  then  ranked  with  that  of 
the  receiver  of  stolen  goods,  the  perjm-er  and  suborner  of  peijmy, 

a  Eex  V.  Fisher,  2  Camp.  5G3-570,  Fer.  Lord  Elleuborough. 

?>  Hotchkiss  V.  Oliphant,  2  Hill.  513;  King  v.  Koot,  4  Wend.  138;  Cooper  v. 
Stone,  21  Wend.  434;  Same  v.  Barber,  Id.  105;  Same  v.  Greely  1  Denio,  347;  Stone 
V.  Cooper,  2  Deuio,  293;  F17  v.  Bennett,  28  N.  Y.  324. 


THE  FEEEDOM   OF   SFEECII   AND   OF  THE  FEESS.  551 

the  disturber  of  the  public  peace,  the  conspirator,  and  other  offend- 
ers of  a  hke  character." 

In  another  case  the  editor  of  a  pa[)cr  attempted  to  justify  the 
hl)el,  by  showing  that  the  artichi  })ultlished,  -svaspubhshedingood 
faith,  having  the  name  of  the  author  attached  to  it.  Chief  Justic(i 
Kent  held,  that  the  attempted  defence  was  properly  rejected,  and 
said,  a  "  The  same  principles  which  are  applied  to  })\dtlic  libels,  arc 
applicable  to  private  calumny,  and  renders  all  e(jually  liable  who 
are  in  anywise  concerned  in  the  publication  of  it.  Individual 
character  must  be  protected,  or  social  happiness  and  domestic 
peace  are  destroyed.  It  is  not  sufficient  tliat  the  printer  by  nam- 
ing the  author,  gives  the  party  agrieved  an  action  against  him. 
This  remedy  may  afford  no  consolation,  and  no  relief  to  the  injured 
party.  The  author  may  be  some  vagrant  individual  who  may 
easily  elude  process,  and  if  found  he  may  be  with(jut  property  to 
remunerate  in  damages.  It  Avould  be  no  check  on  the  libelous 
prmtcr  who  can  spread  the  calumny  Avith  ease,  and  with  rapidity 
throughout  the  commuuit}'.  The  calumny  of  the  author  would 
fall  harmless  to  the  ground  without  the  aid  of  the  printer.  The 
injury  is  inflicted  by  the  press,  which,  like  other  powerful  engines, 
is  mighty  for  mischief  as  well  as  for  good.  I  am  satisfied  that  the 
proposition  contended  for  on  the  part  of  the  defendant,  is  as  des- 
titute of  foundation,  as  it  is  repugnant  to  principles  of  public 
policy." 

The  act  of  publication,  is  an  adoption  of  the  original  calumny, 
which  must  be  defended  in  the  same  way  as  if  invented  by  the  de- 
fendant. The  republication  assumes  and  endorses  the  truth  of  the 
charge,  and  when  called  on  by  the  aggrieved  party,  the  publisher 
should  be  held  strictly  to  the  proof.  If  lie  chooses  to  become  the 
endorser  and  retailer  of  private  scandal,  without  taking  the  trouble 
of  enquiring  into  the  truth  of  what  he  i)uV)lislies,  there  is  no  ground 
for  complaint,  if  the  law,  which  is  studious  to  protect  the  char- 
acter as  the  property  of  the  citizen,  holds  him  to  this  responsibil- 
ity. The  rule  is  not  only  just  and  wise  in  itself,  but  if  steadily  and 
inflexibly  adhered  to  and  applied  by  courts  and  juries,  will  gi-eatly 
tend  to  the  promotion  of  truth,  good  morals  and  common  decency 
on  the  part  of  the  press,  by  inculcating  caution  and  inquiry  into 
a  Dole  V.  Lyon,  10  John.  450. 


552       THE  FREEDOM  OF  SPEECH  AND  OF  THE  PEESS. 

the  truth  of  charges  against  private  character  before  they  arepub- 
hshed  and  cu'cuhited  throughout  the  community,  a 

The  legishiture  of  the  state  of  New  York  in  the  year  1854  en- 
acted a  statute  in  some  degree  modifying  the  common  kiw  as  above 
laid  down  in  regard  to  newspaper  pubhcations,  h  as  follows  :  "  No 
reporter,  editor  or  proprietor  of  any  newspaper,  shall  be  liable  to 
any  action  or  prosecution,  civil  or  criminal,  for  a  fair  and  true  re- 
port in  such  newspaper,  of  any  judicial,  legislative,  or  other  public 
ofHcial  proceedings  of  any  statement,  speech,  argument,  or  debate 
in  the  course  of  the  same,  except  upon  actual  proof  of  malice  in 
making  such  reports,  which  shall  in  no  case  be  implied  from  the 
fact  of  the  publication.  §  2.  Nothing  in  the  preceding  section 
contained  shall  be  so  construed  as  to  protect  any  such  reporter, 
editor  or  proprietor  from  an  action  or  indictment  for  any  libellous 
comments  or  remarks  superadded  to,  and  interspersed  or  connected 
with  such  report." 

Some  very  sensible  reasons  for  a  modification  of  the  common 
law  as  it  regards  the  publishers  of  newspapers,  may  be  found  in 
the  views  of  Judge  Cooley  in  his  work  under  the  head  of  "  Liberty 
of  Speech  and  of  the  Press."  c  He  says,  "  Among  the  inventions 
of  modem  times  by  which  the  world  has  been  powerfully  influ- 
enced, and  civilization  advanced  with  wonderful  celerity,  must  be 
classed  the  newspaper.  Beginning  with  a  small  sheet,  insignifi- 
cant alike  in  manner  and  appearance,  published  at  considerable 
intervals,  and  including  but  few  in  its  visits,  it  has  become  the 
daily  vehicle  to  almost  every  family  in  the  land,  of  information 
from  all  quarters  of  the  globe,  and  upon  every  subject.  Through 
it,  and  by  means  of  the  electric  telegi'aph,  the  public  proceedings 
of  every  civilized  country,  the  debates  of  the  leading  legislative 
bodies,  the  events  of  war,  the  triumphs  of  peace,  the  storms  in  the 
physical  world,  and  the  agitation  of  the  moral  and  mental,  are 
brought  home  to  the  knowledge  of  every  reading  person,  and,  to  a 
very  large  extent,  before  the  day  is  over  on  which  the  events  have 
taken  place.  And  not  public  events  merely  are  discussed  and  de- 
scribed, but  the  actions  and  words  of  public  men  are  made  public 

a  Mapes  v.  Weeks,  4  Wtnd.  G59;  Inman  v.  Foster,  8  We  i<l.  G02. 
b  Sess.  Laws  1854,  Ch.  130. 
c  Cooley,  pp.  451-2. 


TEE  FREEDOM  OF  SPEECII  AND  OF  THE  TRESS.  553 

property  ;  and  any  person  sniliciently  notorious  to  become  the  ob- 
ject of  public  Liitercst,  will  tiiid  liis  movements  chronicled  in  this 
index  of  the  times." 

"  Every  party  has  its  newspaper  organs  ;  eveiy  shade  of  opinion 
on  poUtical,  religious,  hterary,  moral,  industrial,  or  liuancial  ques- 
tions has  its  representative ;  every  locality  has  its  press  to  advo- 
cate its  claims,  and  advance  its  interests,  and  even  the  days  re- 
garded as  sacred,  have  theu'  special  papers  to  furnish  reading 
suitable  for  the  tmie.  The  newspaper  is  also  the  medium  by 
means  of  which  all  classes  of  the  people  comnuuiicate  with  each 
other  concemmg  theu-  Avants  and  desires,  and  through  which  they 
ofifer  their  wares,  and  seek  bargains.  As  it  has  gradually  increased 
in  value,  and  in  the  extent  and  variety  of  its  contents,  so  the  ex- 
actions of  the  commuuit}'  upon  its  conductors  have  also  increased, 
until  it  is  demanded  of  the  newspaper  publisher,  that  he  shall 
daily  spread  before  its  readers,  a  complete  summary  of  the  events 
transpu-ing  m  the  v.  orld,  pubhc  or  private,  so  far  as  those  readers 
can  reasonably  be  supposed  to  take  an  mtercst  in  them  ;  and  he 
who  does  not  comply  with  tliis  demand  must  give  way  to  him 
who  wQl." 

The  newspaper  is  one  of  the  chief  means  for  the  education  of 
the  people.  The  highest  and  the  lowest  in  the  scale  of  intelhgence 
resort  to  its  columns  for  information ;  it  is  read  by  those  who  read 
noticing  else,  and  the  best  minds  of  the  age  make  it  the  medium 
of  communication  with  each  other  on  the  highest  and  most  ab- 
struse subjects.  Upon  politics  it  may  bo  said  to  be  the  chief 
educator  of  the  people  ;  its  influence  is  potent  in  every  legislative 
body ;  it  gives  tone  and  direction  to  pubhc  sentiment  on  each  im- 
poiiant  subject  as  it  arises ;  and  no  administration  in  any  free 
country  ventures  to  overlook  or  disregard  an  element  as  per^'ading 
in  its  influence,  and  withal  so  powerful. 

Aaid  3-et  it  may  be  doubted  if  the  newspaper,  as  such,  has  ever 
influenced  at  all  the  cm-rent  of  the  common  law  in  any  particular, 
important  to  the  interests  of  the  publishers.  The  railway  has 
become  the  successor  of  the  lung's  highway,  and  the  plastic  niles 
of  the  common  law  have  accommodated  themselves  to  the  new 
condition  of  things ;  but  the  changes  accomplished  by  the  public 
press,  seem  to  have  passed  unnoticed  in  the  law,  and  save  only, 
70 


55  i  FEEE  EXERCISE   OF  RELIGIOUS   OPINION. 

where  modifications  have  been  made  by  constitution  or  statute, 
tlie  publisher  of  the  daily  paper  occupies  to-day  the  position  in 
the  courts  that  the  village  gossip  and  retailer  of  scandal  occupied 
two  hundred  years  ago ;  with  no  more  privilege  and  no  more 
protection. 

The  rule  as  to  tlie  ])rivilcge  of  publication  docs  not  seem  to  be 
chan<^ed  when  the  pubhcation  is  that  of  legislative  proceedings. 
Doubtless  a  member  of  cougi-css  or  of  the  state  legislature  has  a 
i-ight  to  pubhsli  his  speech,  but  it  is  upon  his  own  responsibility, 
and  at  his  own  peril  if  he  makes  that  speech  and  its  publication  a 
vehicle  of  slander,  or  a  hbel  against  an  individual,  a  To  speak  in 
the  legislative  body,  he  is  protected  by  the  constitution,  privileged 
to  say  what  he  will,  but  ho  must  stop  then,  if  the  speech  contains 
libellous  matter.  If  he  chooses  to  pubhsh  it  abroad,  other  than 
for  the  use  of  the  body  of  which  he  is  a  member,  his  constitutional 
privilege  has  ceased,  and  he  may  for  that  be  convicted  and  fined, 
for  the  libel,  and  be  held  amenable  to  the  citizen  whose  character 
has  been  traduced,  h  Whether  the  pubhcit)'  given  to  speeches 
made  in  congress  by  pubhshing  them  by  order  of  that  body  in  the 
Glohe,  is  privileged,  has  not  yet,  it  seems,  been  tested  by  judicial 
decision.  It  is  exceedingly  doubtful  whether  or  not  a  libel  so  pub- 
lished would  be  privileged. 

FEEE  EXERCISE  OF  RELIGIOUS  OPIKION. 

Upon  no  subject  which  caUs  for  the  exercise  of  the  human  mind 
is  man  found  to  be  so  incapable  of  exercising  an  unprejudiced 
judgment,  asm  that  of  his  religious  opinions.  Prejudices  is  always 
incapable  of  perceiving  or  of  estimating  tiaith.  The  history  of  the 
persecutions  in  bigoted  governments  of  other  days,  was  a  sufficient 
ground  for  providing  this  constitutional  security.  Neither  force  or 
violence,  but  reason  and  conviction,  should  dictate  to  us  the  relig- 
ion, or  duty,  we  owe  to  our  Creator,  as  weU  as  the  manner  of  dis- 
charging it.  In  vain  therefore  may  the  civil  magistrate  intei-pose 
the  authority  of  human  laws,  to  prescribe  that  beUef,  or  produce 
that  conviction,  which  human  reason  rejects  ;  in  vam  may  the  sec- 
ular arm  be  extended,  the  rack  stretched,  and  the  flames  kindled, 

a  King  v.  Abingdon,  1  Eshmasse,  220. 
b  Eex  V.  Creew,  1  M.  &  S.  278. 


FREE  EXERCISE   OF  RELIGIOUS  OriNION.  555 

to  realize  the  tortures  denounced  against  unbelievers  by  all  the 
various  sects  of  tlie  various  denominations  of  fanatics  and  enthu- 
siasts throughout  the  earth.  The  martyr  at  the  stake,  glories  in 
liis  toi-tures,  and  proves  that  though  human  hxws  can  punish,  they 
cannot  convince.  Tlie  pretext  of  religion,  and  tlie  pretences  of 
sanctity  and  humihty,  have  been  employed  throughout  the  world 
as  the  most  du-ect  means  of  gaining  influence  and  power,  and  liavo 
all  failed  to  accompKsh  that  end.  Hence,  as  we  learn  from  liistory, 
the  numberless  martyrdoms,  and  massacres  that  have  drenched 
the  whole  earth  with  blood,  fi-om  the  first  moment  that  civil  and 
reUgious  institutions  were  blended  together.  To  separate  these 
institutions  by  constitutional  barriei-s  that  can  never  be  overcome, 
is  the  only  means  by  which  (jur  duty  to  God  ;  the  peace  of  man- 
kind ;  and  the  genuine  fruits  of  charity  and  paternal  love,  can  be 
presen-ed,  or  properly  discharged.  This  constitutional  prohibition, 
therefore,  may  be  regarded,  as  the  most  powerful  cement  of  the 
federal  government.  Those  who  prize  the  union  of  the  states,  will 
never  attempt  to  touch  this  fundamental  article  with  unhallowed 
hands.  *'  The  ministry  of  the  unsanctified  sons  of  Aaron,  in  their 
unhallowed  doing,  scarcely  produced  a  flame  more  sudden  and 
more  destnictive,  than  such  an  attempt  would  ine"vitably  excite."  a 
Nor  can  it  be  charged  that  this  article,  was  the  result  of  a  feeling 
of  infidelity,  or  want  of  respect  to  the  sanctions  of  religion,  on  the 
pai"t  of  the  patriot  fathers  who  prepared  it.  "  Indeed,  in  a  republic, 
there  would  seem  to  be  a  pecuHar  propriety  in  viewing  the  chris- 
tian religion,  as  the  great  basis  on  which  it  must  rest  for  its  sup- 
port  and  permanence.  It  may  be  regarded  as  above  all  others,  the 
religion  of  liberty."  h  Montesquieu  has  remarked,  that  the  christian 
rehgion  is  a  stranger  to  mere  despotic  power.  The  mildness  so 
fi-equently  recommended  in  the  gospel,  is  incompatible  with  the 
despotic  rage  with  which  a  prince  punishes  his  subjects  and  exer- 
cises himself  in  cnielty.  c  It  is  the  christian  rehgion,  that  in 
spite  of  the  extent  of  the  empire,  and  the  influence  of  the  climate, 
has  lundered  despotic  power  from  being  established  in  Ethiopia, 
and  has  carried  into  the  heart  of  Africa  the  manners  and  laws  of 
Eui'ope.  cl    Citizens  professing  to  believe  in  the  christian  religion, 

a  Id.  12  Story  ou  Const.  §  1783. 

c  Montesquieu's  Spirit  of  Laws,  B.  2-1  Ch.  3.  d  Id. 


5oG  FKEE  EXEECISE   OF  EELIGIOUS   OEINION. 

are  infinitely  more  enlightened  as  to  the  various  duties  of  life; 
having  the  wannest  zeal  to  fulfill  them.  The  more  tliey  believe 
themselves  indebted  to  religion,  the  more  they  recognize  the  duties 
they  owe  to  their  country.  The  principles  of  Christianity  when 
deeply  engraven  on  the  heart,  are  far  more  powerful  than  the  influ- 
ence of  the  false  honor  of  monarchy,  the  human  virtues  of  a 
repubhc,  or  the  servile  fear  of  a  despotism.  "  The  rights  of  con- 
science, however,"  says  Judge  Story,  a  "  are,  indeed  beyond  the 
just  reach  of  any  human  power.  They  are  given  by  God,  and 
cannot  be  encroached  upon  by  human  authority,  without  a  crim- 
inal disobedience  to  the  precepts  of  natural,  as  well  as  revealed 
rehgion." 

"  This  amendment,"  ho  says,  "  cut  off  the  means  of  religious 
persecution  (the  vice  and  pest  of  former  ages,)  and  of  the  subver- 
sion of  the  rights  of  conscience  in  matters  of  religion,  which  had 
been  trampled  upon,  almost  from  the  days  of  the  Apostles,  to  the 
present  age.  The  history  of  the  parent  country,  had  afforded  the 
most  solemn  warnings  and  melancholy  instructions  on  this  head ; 
and  even  New  England,  the  land  of  persecuted  puritans  as  well  as 
other  colonies  where  the  Church  of  England  had  maintained  its 
superiority,  would  furnish  out  a  chapter  as  full  of  the  darkest 
bigotry  and  intolerance,  as  any  which  could  be  found  to  disgrace 
the  pages  of  foreign  annals.  Apostacy,  heresy,  and  nonconformity, 
had  been  standard  crimes  for  public  appeals,  to  kindle  the  flames 
of  persecution,  and  to  apologize  for  the  most  attrocious  triumphs 
over  innocence  and  virtue."  h 

"It  was  under  a  solemn  consciousness  of  the  danger  from  eccle- 
siasticle  ambition,  the  bigotry  of  the  spiritual  pride,  and  the  intol- 
erance of  sects,  thus  exemplified  in  our  domestic,  as  well  as  foreign 
annals,  that  it  was  deemed  advisable  to  exclude  from  the  national 
government,  all  power  to  act  upon  the  subject.  The  situation  too, 
of  the  different  states,  equally  proclaimed  the  policy,  as  well  as 
the  necessity,  of  sucli  an  exclusion."  c 

Perhaps  the  constitutional  provision  of  the  state  of  New  York 
on  this  subject,  is,  as  an  epitome,  as  sound  a  commentary  as  can 

a  2  Story  on  Const.  §  187G. 

b  Id.  §  1877,  Vol.  1  §§  53,  72,  73;  4  Black.  Com.  43-59. 

c  2  Story  on  Const.  '^  1789;  Elliot's  Debates.  195-197. 


FKEE  EXERCISE  OF  riELIGIOUS  OrESlON.  55  f 

be  given  of  religious  freedom,  and  restriction.  "  The  free  exercise 
and  enjoyment  of  religious  pr<ji'essiun  and  worship,  without  dis- 
crimination or  prefcrenco,  shall  forever  be  allowed  in  this  state 
to  all  mankind ;  and  no  person  shall  be  rendered  incompetent  to 
be  a  witness  on  account  of  his  opinions  on  matters  of  reUgious  be- 
lief ;  but  the  liberty  of  conscience  liereby  secured,  shall  not  be  so 
constnied  as  to  excuse  acts  of  licentiousness,  or  justify  practices 
hiconsistent  with  the  peace  or  safety  of  the  state." 

A  fan-  commentary  upon  this  provision,  in  general  terms,  is,  that 
no  law  shall  be  passed  creating  preferences  in  favor  of  one  rehgious 
sect  or  denomination,  or  as  to  their  mode  of  worship  over  another ; 
there  shall  be  no  established  rehgion  by  the  state ;  whatever  estab- 
lishes a  distinction  for  or  agauist  one  sect,  as  against  another,  is 
not  equal  toleration  ;  is  not  religious  equality ;  but  has  its  tendency 
towards  rehgious  persecution.  A\'liether  laws  passed  authorizing 
the  raising  of  money  by  general  taxation,  to  be  appropriated  to 
the  education  of  cldldren  of  one  particular  religious  faith  or  sect, 
are  not  ^■iolations  of  this  fundamental  law,  is  yet  to  be  determined. 
Whether  under  color  of  appropriations  for  secular  education, 
moneys  can  be  so  raised  and  applied  to  those  of  one  particular 
religious  faith,  is  a  question  for  the  futui'e.  It  is  clearly,  against 
the  spuit  and  intent  of  the  constitution. 

"  This  provision,  excludes  the  right  to  enact  laws  compulsor}- 
of  attendance  upon  religious  mstmction.  The  citizen  must  be  led 
by  his  OMTi  choice  and  sense  of  duty,  to  attend  the  ordinances  of 
religion.  The  duties  he  owes  to  his  Maker,  can  only  be  enforced 
by  the  admonitions  of  liis  conscience ;  human  laws  cannot  enforce 
tliis  by  penalties  ;  nor  can  they  impose  any  restraints  upon  the 
free  exercise  of  religion  according  to  the  dictates  of  each  individual 
conscience.  No  state  or  civil  authority  can  come  between  the 
finite  being  and  the  Infinite,  when  the  fonner  is  seeking  to  render 
that  homage  wliicli  is  due,  and  in  a  mode  which  commends  itself 
to  his  belief,  as  suitable  for  him  to  render,  and  as  is  acceptable  to 
its  object,  a  Nor  can  any  restraints  be  imposed  upon  a  reasonable 
expression  of  religious  belief.  If  the  beUever  regards  it  his  duty 
to  propogate  his  opinions,  the  freedom  of  speech  under  the  other 
provision  of  the  constitution,  secures  him  the  right  to  do  so,  subject 

a  Coolcy  on  Liniittitious,  470. 


558  FREE  EXERCISE  OF  RELIGIOUS   OFINION. 

to  the  restraints  therein  imposed.  Nearly  every  state  constitution 
in  the  Tniou,  in  similar  provisions,  confers  this  privilege.  It  Avas 
the  intention,  that  the  citizen  bo  left  to  adopt  his  own  creed  to  his 
own  convictions,  and  both,  to  such  light  and  understanding  as  a 
free  inquiiy  into  his  own  nature,  needs,  duty  and  relation  to  God, 
and  man  will  give  him. 

AYhile  this  fi-eedom  of  opinion  is  thus  secured  and  conceded,  it 
will  be  denied  by  few,  "  that  the  promulgation  of  the  gi-eat  doc- 
trines of  rehgion ;  the  being,  and  attributes,  and  providence  of  one 
Almighty  God;  the  responsibility  to  Him  for  all  our  actions 
founded  upon  moral  freedom  and  accountability ;  a  future  state 
of  rewards  and  punishments ;  the  cultivation  of  all  the  personal, 
social,  and  benevolent  virtues ;  can  never  be  a  matter  of  in- 
difference in  any  well  ordered  community.  It  is,  indeed,  difficult 
to  conceive  how  any  civilized  society  can  well  exist  without  them. 
And  at  all  events,  it  is  impossible  for  those  who  beheve  in  the  tnith 
of  Christianity  as  a  divine  revelation,  to  doubt,  that  it  is  the  espec- 
ial duty  of  government  to  foster  and  encourage  it  among  all  the 
citizens  and  subjects.  This  is  a  point  wholly  distinct  from  that 
of  the  right  of  private  judgment  in  matters  of  religion,  and  of  the 
freedom  of  pubKc  worship  according  to  the  dictates  of  one's  con- 
science." a 

"Whatever  may  be  the  shades  of  rehgious  behef,  all  must 
acknowledge  the  fitness  of  recognizing  in  important  human  affairs, 
the  supermtending  care  and  control  of  the  Great  Governor  of  the 
universe,  and  of  acknowledgmg  with  thanksgiving,  His  boundless 
favors,  at  the  same  time  that  we  bow  in  contrition,  when  visited 
with  the  penalties  of  his  broken  laws.  No  principle  of  consti- 
tutional law  is  violated  when  Thanksgiving,  or  Fast  days  are 
appointed  ;  when  chaplains  are  designated  for  the  army  or  navy, 
when  legislative  sessions  are  opened  with  prayer,  or  the  reading 
of  the  scriptures  ;  or  when  religious  teaching  is  encouraged  by 
exempting  houses  of  rehgious  worship  from  taxation  for  the  sup- 
port of  state  government.  Undoubtedly,  the  spirit  of  the  consti- 
tution will  require,  in  all  these  cases,  that  care  be  taken  to  avoid 
all  discrimination  in  favor  of  any  one  denomination  or  sect ;  but 
the  power  to  do  any  of  these  thmgs  will  not  be  unconstitutional, 
a  Story  on  Const.  §  1871 . 


FREE  EXERCISE  OF  RELIGIOUS  OPINION.  559 

simply  because  of  beiug  susceptible  of  abuse.  This  public  recog- 
nition of  religious  -worshij),  lunvever,  is  not  based  entirely,  per- 
haps even  mainly,  upon  a  sense  of  what  is  due  to  the  Supreme 
Being  liimself,  as  the  author  of  all  good,  and  of  all  law ;  but  the 
same  reasons  of  state  policy  which  induce  the  government  to  aid 
institutions  of  charity,  and  seminaries  of  instraction,  will  also  in- 
cline it  to  foster  religious  worship  and  religious  institutions,  as 
conservators  of  the  public  morals,  and  valuable,  if  not  indispen- 
sable assistants  to  the  preservation  of  the  public  order."  « 

"  Nor  while  recognizing  a  superintending  Providence,  are  wc 
always  precluded  from  recognizing  also,  in  the  rules  prescribed  for 
the  conduct  of  citizens,  the  patent  fact,  that  the  prevailing  religion 
of  the  states  is  Christian.  Some  acts  would  be  offensive  to  public 
sentiment  in  a  christian  community,  and  would  tend  to  public  dis- 
order, which,  in  a  Mahomedan,  or  in  a  Pagan  country,  might  be 
passed  Avithout  notice,  or  even  be  regarded  as  meritorious.  The 
criminal  laws  of  every  country  have  reference  in  a  great  degree  to 
prevailing  public  sentiment ;  and  punish  those  acts  as  crimes, 
which  disturb  the  peace  and  order,  or  tend  to  shock  the  moral 
s-nse  of  the  community.  The  moral  sense,  is  measurably  regula- 
ted and  controlled  by  the  religious  belief ;  and  therefore  it  is,  that 
those  things  which,  estimated  by  a  christian  standard,  are  profane 
and  blasphemous,  are  properly  punished  as  offences,  since  they 
are  offensive  in  the  highest  degree  to  the  general  public  sense, 
and  have  a  direct  tendency  to  undermine  the  moral  support  of  the 
laws,  and  corrupt  the  community."  h 

Christianity  has  also  been  recognized  in  our  judicial  decisions , 
and  is  so  far  carried  out  in  our  criminal  jurisprudence,  as  that  the 
law  will  not  permit  the  essential  truths  of  revealed  religion- to  be 
ridiculed  and  reviled.  In  other  words,  that  blasphemy  is  an  in- 
dictable offence  at  common  law.  c 

Blasphemy  has  been  defined  as  the  speaking  evil  of  the  Deity, 
with  an  impious  purpose  to  derogate  from  the  Divine  Majesty,  and 
to  alienate  the  minds  of  others  from  the  love  and  reverence  of 
God.     It  is  pm'posely  using  words  concerning  God,  calculated  and 

a  Cooley  on  Religious  Liberty,  171.  h  Iil. 

c  Vidal  V.  Girard,  2  How.  U.  S.  R.  198;  rpclogvupli  v.  The  Coumiouwealth,  11 
Seai-K.  &  E.  391. 


560  FEEE  EXERCISE  OF  RELIGIOUS  OPINION. 

designed  to  impair  and  destroy  the  reverence,  respect,  and  confi- 
dence due  to  Him,  as  the  intelligent  Creator,  Governor  and  Judge 
of  tlio  Avorld.  It  embraces  the  idea  of  detraction,  when  used  to- 
wards the  Supreme  Being,  and  as  "  calumny,"  and  usually  carries 
tliO  same  idea,  when  applied  to  an  individual.  It  is  a  wilful  and 
malicious  attempt  to  lessen  men's  reverence  of  God,  by  denying  his 
existence,  or  his  attributes  as  an  intelligent  Creator,  Governor  and 
■Judge  of  men,  and  to  prevent  their  having  confidence  in  Him.  a 
Blasphemy  against  God,  and  contumatious  reproaches,  and  profane 
ridicule  of  Clu'ist,  or  of  the  Holy  Scriptures,  are  offences  punish- 
able at  the  common  law.  h  "  Such  offences  have  ahvays  been  con- 
sidered independent  of  any  religious  establishment,  or  the  rights  of 
an  established  church.  They  are  treated  as  affecting  the  essential 
interests  of  civil  society.  There  is  nothing  in  our  manners  or  in- 
stitutions wliich  has  prevented  the  application,  or  the  necessity  of 
this  part  of  the  common  law.  We  stand  in  need  of  all  that  moral 
discipline,  and  of  those  principles  of  virtue,  which  help  to  bind 
society  together.  The  people  of  this  nation,  and  of  this  state,  pro- 
fess the  general  doctrines  of  Christianity  as  the  rule  of  their  faith 
and  practice ;  and  to  scandalize  the  Author  of  these  doctrines,  is 
not  only,  in  a  religious  point  of  view,  extremely  imj)ious,  but  a  gross 
violation  of  decency  and  good  order.  Nothing  could  be  more  of- 
fensive to  the  virtuous  part  of  community,  or  more  injurious  to 
the  tender  morals  of  the  young,  than  to  declare  such  profanity  law- 
ful. It  would  go  to  confound  all  distinction  between  things  sacred 
and  profane ;  for,  to  use  the  words  of  one  of  the  greatest  oracles 
of  human  wisdom  :  Lord  Bacon,  "  Profane  scoffing  doth,  by  little 
and  little  deface  the  reverence  for  religion."  Things  which  cor- 
nipt  moral  sentiment,  as  obscene  actions,  prints,  and  writings,  and 
even  gross  instances  of  seduction,  have  upon  the  same  j)rinciplc 
been  held  indictable  ;  and  shall  we  form  an  exception  in  these  par- 
ticulars, to  the  rest  of  the  civilized  world  ?  No  government  among 
the  polished  nations  of  antiquity ;  and  none  of  the  institutions  of 
modern  Europe,  ever  hazarded  such  a  bold  experiment  upon  the 
solidity  of  the  public  morals,  as  to  permit  vnih  impunity,  and  under 

a  Commonwealth  v.  Kneeland,  20  Pick.  213. 
h  People  v.  Paiggles,  8  Johu.  290. 


FTiEE   EXERCISE   OF  liELIGIOUS   OriMON.  5G1 

the  sanction  of  their  tribunals,  tlic  general  religion  of  the  com- 
munity to  be  openly  insulted  and  defamed,  a 

But  it  does  not  follow,  because  blasphemy  is  punishable  as  a 
crime,  that  tlu'refore  one  is  not  at  liberty  to  dispute  and  argue 
against  the  tnitli  of  the  christian  religion,  or  of  any  accepted 
dogma.  Its  "divine  origm  and  truth"  arc  not  so  far  admitted  in 
the  law,  as  to  preclude  their  being  controverted.  To  forbid  dis- 
cussion upon  this  subject,  except  by  the  various  sects  of  believers, 
would  be  to  abridge  the  liberty  of  speech  and  of  the  press  m  a 
point  which  with  many,  would  be  regarded  as  most  important  of 
all.  Blasphemy,  implies  something  more  than  a  denial  of  any  of 
the  truths  of  religion,  even  of  the  higliest  ant!  most  vital.  A  bad 
motive  must  exist ;  there  nnist  be  a  wOfid  and  maUcious  attempt 
to  lessen  men's  reverence  for  the  Deity,  or  for  the  accepted  religion. 
But  outside  of  such  wilful  and  maHcious  attempt,  there  is  a  broad 
field  for  candid  investigation  and  discussion,  which  is  as  much 
open  to  the  Jew  and  the  Mahomedan,  as  to  the  professors  of  the 
Christian  faith.  No  author  or  printer  who  fairly  and  honestly  pro- 
mulgates the  opinions  with  whose  tniths  he  is  impressed  with,  for 
the  benefit  of  others,  is  answerable  as  a  criminal.  A  mahcious  and 
mischievous  intention  in  such  case,  is  the  broad  boundary  between 
right  and  An'ong.  It  is  to  be  collected  fxom  the  ofiensive  le^dty, 
scunillous  and  approbrious  language,  and  other  cii'cumstances, 
whether  the  act  of  the  party  was  malicious,  h 

Nor  is  the  constitutional  provision  of  this  state,  that  no  person 
shaU  bo  rendered  incompetent  to  be  a  witness  on  accoimt  of  his 
opinions  on  matters  of  religious  belief,  to  be  interpreted  as  a  repu- 
diation of  the  doctiine  that  the  christian  rehgion  shall  remain  the 
common  law  of  the  state.  The  legislative  and  practicable  inter- 
pretation of  this  provision,  is  in  harmony  with  the  common  law. 
By  the  Ee^ised  Statutes  of  this  state,  c  it  is  provided,  that  everv 
person  who  shall  be  elected  or  appointed  to  any  ci^il  office  or  pub- 
he  office,  or  pubhc  trast,  before  he  shall  enter  on  the  duties  of 
such  tnist,  shall  take  the  following  oath  or  affirmation :  "  I  do 
solemnly  swear"  or  "affirm,"  as  the  case  may  be,  "  that  I  will  sup- 

a  la.  294,  per  Kent,  Ch.  J. 

h  Updegrftph  v.  Commonwealtb,  11  Searg.  &  K.  391. 

c  1  Eev.  St  lia 

71 


ri62  FEEE  EXEECISE  OF  EELIGIOUS  OriNION. 

port  the  constitution  of  the  United  States,  and  the  constitution  of 
the  state  of  New  York,  and  that  I  will  faithfully  discharge  the 

duties  of  the  office  of to  the  best  of  my  ability."     This  oath 

is  required  of  all  executive,  legislative,  judicial  and  civil  officers  of 
the  state.  By  another  statute  provision,  a  it  is  further  pro\'ided, 
that  the  usual  mode  of  administering  oaths,  now  practiced  by 
the  person  who  swears,  by  laying  his  hands  upon  and  kissing  the 
gospels,  shall  b3  obsen-ed  in  all  cases,  in  which  an  oath  may  be 
administered,  except  if  a  person  desire  it,  it  shall  be  :  "  You  do 
swear  hi  the  presence  of  the  overliving  God,"  he  lioldmg  up  his 
hand  or  not,  at  his  discretion ;  or  to  a  person  having  conscientious 
scruples  against  taldng  an  oath,  he  may  bo  permitted  to  make  a 
solemn  declaration  in  the  following  form  :  "  You  do  solemnly, 
sincerely  and  truly  declare  and  affirm."  And  the  courts  are  there- 
by authorized,  where  they  are  satisfied  that  a  person  has  some 
peculiar  mode  of  swearing,  connected  with  or  in  addition  to  the 
laying  his  hand  upon  the  gospel,  and  kissmg  the  same,  which  is 
more  solemn  and  obligatory  upon  such  person,  in  their  discretion, 
to  allow  him  to  be  sworn  in  such  other  way.  And  it  also  provides, 
that  persons  believmg  in  another  than  the  christian  religion,  may 
be  sworn  according  to  the  ceremonies  of  his  religion,  instead  of 
the  above  prescribed  modes.  So  too,  every  person  behoving  in 
the  existence  of  a  Supreme  Being,  who  will  punish  false  swearing, 
may  be  sworn  if  otherwise  competent.  Thus,  it  is  seen,  that  the 
gospels,  that  is,  the  doctrine  of  the  New  Testament,  is  by  the 
strongest  implication,  adopted  as  the  religion  of  the  state  by  its 
statutes ;  and  the  oath,  which  is  a  solemn  appeal  to  God,^with  an 
implied  invocation  of  His  curse  upon  him  who  makes  it,  in  the 
event  of  its  violation,  is  a  further  acknowledgment  of  the  moral 
government  of  God.  And  under  whatever  religion,  or  by  Avhat- 
ever  form  of  oath  the  person  may  choose  to  be  sworn,  is  made 
equally  subject  to  all  the  pains  and  penalties  of  perjury ;  thus 
holding  all  persons  equally  liable  to  the  crime  agamst  God,  against 
morals,  religion  and  law. 

In  all  this,  while  it  is  seen,  that  in  tlie  forms  and  practice,  the 
statute  has  fully  carried  out  that  other  constitutional  right,  that 
no  person  shall  be  rendered  incompetent  to  be  a  witness  on  account 

a  2  llev.  Stat.  407-408. 


FREE  EXEllCISE   OF   liELIGlOUS   Ol'INION.  56i> 

ot  his  opinions  on  mtitteis  of  religious  Ijelief ;  yet  tlio  constitution 
itself  has  given  tlu;  (jualifying  caution,  that  this  liberty  of  con- 
science, so  secured,  shall  not  be  so  constinied  as  to  excuse  acts  of 
licentiousness,  or  justify  practices  inconsistent  with  the  peace  or 
safety  of  the  state.  Montesquieu  informs  us,  "  that  such  was  the 
influence  of  an  oath  among  the  Romans,  m  binding  them  to  the 
laws,  that  they  did  more  for  its  observance,  than  they  would  have 
done  for  the  thirst  of  glor}',  or  the  love  of  theii"  country ;  that 
Eome  was  for  a  long  period  of  time,  held  by  two  anchors,  religion 
and  morahty,  in  the  midst  of  a  furious  tempest."  a 

To  this  extent,  then,  do  the  laws  of  this  christian  government 
give  toleration.  All  religions  are  recognized  by  law,  to  the  extent 
of  allowing  all  persons  to  be  sworn  and  to  give  their  evidence,  who 
believe  in  a  Supreme  superintenthng  Providence  who  rewards  and 
punishes;  and  that  an  oath  is  binding  upon  their  consciences. 
Wherever  the  common  law  remains  unchanged,  it  must  be  held  no 
violation  of  religious  liberty  to  recognize  and  enforce  its  distinc- 
tions. The  infidelity,  or  imbelief  of  a  witness,  will  ever  go  to  his 
credibihty ;  though  competent  to  be  sworn,  it  is  for  a  Christian 
jury  to  say,  what  credibility  they  will  allow  to  evidence,  which  is 
given,  without  a  regard  to  a  Christian's  rcsponsibihty  to  his  Maker 
for  its  tnith. 

It  is  upon  this  piinciple  of  liberty  of  speech,  and  of  conscience, 
that  our  statutes  to  prevent  the  desecration  of  the  christian  Sab- 
bath, excepts  the  Jew,  and  all  other -persons  who  regard  the  sev- 
enth day  of  the  week  as  the  Sabbath,  from  liability  to  the  violation 
of  the  lawmaking  the  first  day  of  the  week  the  Christian  Sabbath. 
The  law  intends  not  to  intermeddle  with  the  natural  and  mde- 
feasible  right  of  all  men  to  worship  Almighty  God,  according  to 
the  dictates  of  theu'  own  consciences ;  it  compels  no  one  to  attend  to, 
erect,  or  support  any  place  of  worship  ;  or  to  maintain  any  minis- 
try against  his  consent;  it  pretends  not  to  control  or  interfere  witli 
the  rights  of  conscience ;  and  it  estabhshes  no  preference  for  an}- 
religious  establishment  or  mode  of  worship.  It  treats  no  religious 
doctiine  as  paramount  in  the  state ;  it  enforces  no  unwilling  at- 
tendance upon  the  celebration  of  Divine  worship.  It  says  not  to 
the  Jew  or  Sabbatarian,  "  you  shall  desecrate  the  day  you  esteem 

aB.  8,  Cb.  13. 


56i  FREE  EXERCISE   OF  RELIGIOUS   OPINION. 

holy  and  keep  sacred  to  religion,  that  ice  deem  to  be  so."  It  en- 
ters upon  no  discussion  of  rival  claims  of  the  first  and  seventh  da^-s 
of  the  week ;  nor  pretends  to  bind  upon  the  conscience  of  any  man 
any  conclusion  upon  a  subject  which  each  must  decide  for  himself. 
It  iutiiides  not  mto  the  domestic  circle  to  dictate,  when,  where,  or 
to  what  God  its  inmates  shall  address  their  orisons,  nor  does  it 
presiune  to  enter  the  synagogue  of  the  Isrealite,  or  the  church 
of  the  seventh  day  Christian,  to  command,  or  even  persuade 
their  attendance  in  the  temples  of  those  who  especially  ap- 
proach the  altar  on  Sunday.  It  does  not  in  the  sh'ghtest  degree 
infringe  upon  the  Sabbath  of  any  sect,  or  curtail  their  freedom  of 
worship.  It  detracts  not  one  horn-  from  any  period  of  time  they 
may  feel  bound  to  devote  to  this  object.  Nor  does  it  add  a  mo- 
ment beyond  what  they  may  choose  to  employ.  Its  sole  mission 
is  to  inculcate  a  temporary  weekly  cessation  from  labor,  but  it 
adds  not  to  this  requirement  any  religious  obligation,  a 

Unquestioned  history  has  taught  us,  that  in  all  Pagan  countries 
where  the  Sabbath  is  unknown  ; — where  the  true  God  is  never 
adored,  the  soul  of  man  is  debased  ;  the  man  prostrates  himself 
before  the  sun,  the  moon,  monsters,  reptiles,  blocks  of  wood,  and 
even  to  demons.  In  France,  where  the  Sabbath  was  for  a  time 
abolished,  an  impious  phantom,  called  the  Goddess  of  Reason, 
was  substituted  in  the  room  of  the  Omnipotent  and  Eternal  God ; 
the  Bible  was  held  up  to  ridicule,  and  committed  to  the  flames ; 
man  was  degraded,  and  his  mind  assimilated  to  the  level  of  the 
brutes ;  and  the  cheering  prospects  of  immortalit}-,  were  trans- 
formed into  the  shades  of  an  eternal  night.  Atheism,  Scepticism, 
Fatalism,  almost  universally  prevailed  ;  the  laws  of  morality  were 
trampled  under  foot;  and  anarchy,  and  plots,  and  assassinations, 
massacres  and  legalized  jDlunder,  became  the  order  of  the  day. 
With  the  abolition  of  the  Sabbath,  followed  the  loss  of  the  knowl- 
edge of  God  as  the  Governor  of  the  universe,  with  all  impressions 
of  the  Divine  presence,  and  all  sense  of  accountabihty  for  liiimau 
actions.  The  restraints  of  religion,  and  the  prospect  of  a  future 
judgment,  no  loiiger  deten-ed  from  the  commission  of  crimes ;  and 
nothing  was  left  but  the  dread  of  the  dungeon,  the  gibbet  or  the 
rack,  to  restrain  the  people  from  deeds  of  cruelty,  injustice  and 

a  Specht  V.  Commoiuvealtl;,  8  I'eiii).  .St.  li.  312. 


FREE  EXERCISE   OF  RELIGIOUS   OPINION.  5G5 

violence.  "\Vc  arc  thus  taught  hy  liistoiy  and  oxporience,  in  con- 
firmation of  tlio  Divine  Eevehition,  that  tliu  Sabbath  was  origin- 
ally instituted  as  a  sacred  memorial  of  the  liuisliiug  of  the  work  of 
creation  ;  and  in  accordance  witli  the  law  of  tlic  Decalogue,  it  is  a 
day  for  the  contemplation  of  the  perfections  and  holiness  of  its 
Almighty  Author.  It  was  a  day  made  for  man,  as  a  wise  and 
merciful  appointment  for  a  day  of  rest,  repose  and  reflection. 


5GG  l■AKLLUIE^•TA^vY  LAW  AND  LEGISLATIVE   rKIVILEGES. 


OlIArTEll  XV  III. 

OF  rAELlAMENTAEY  LAW;  AND  OF  THE  PRIVILEGES  AND  INCIDENTAL 
POWERS  OF  LEGISLATRT^  ASSEMBLIES. 

The  legislative  department  of  the  government,  is  one  of  the  three 
depositories  of  the  sovereign  power  of  the  state.  It  is  co-ordinate 
to  the  other  two  departments,  the  executive  and  judiciiJ;  and 
within  its  sphere,  is  independent  of  the  others.  To  enable  it  to 
perform  its  appropriate  duties,  and  to  exercise  its  proper  functions, 
it  is  necessary  and  essential,  that  they  should  possess  all  needful 
powers,  and  all  necessary  rights  and  privileges,  for  the  fi-ee  and 
independent  exercise  of  their  separate  action. 

It  would  seem  to  be  the  natural  result  of  the  establishment  of 
such  a  department,  under  a  constitution  recognizing  the  existence 
and  force  of  the  common  law  in  regard  to  their  powers  and  privi- 
leges ;  and  in  the  absence  of  words  of  restriction,  or  negative  words 
prohibiting  the  power  or  right ;  that  by  necessary  implication, 
(which  is  equivalent  to  an  express  grant,)  there  is  conferred  upon 
each  branch  of  the  legislative  department,  all  the  powers  and 
privileges  necessarily  incident  to  a  legislative  assembly. 

If  the  poicers  are  expressed,  and  enumerated  in  the  constitution, 
and  no  negative  or  restrictive  words  are  employed  as  to  their 
privileges,  the  latter  may  be  implied  to  be  such  as  are  necessarily 
incident  to  such  a  body,  and  such  as  exist  by  the  common  law. 

These  rights  and  immunities,  as  well  of  members  individually,  as 
of  the  body  in  its  collective  capacity,  are  known  by  the  general 
name  oi  privilecjes  ;  and  when  they  are  disregarded  by  any  indi- 
vidual, or  authority,  whose  duty  it  is  to  take  notice  of  them.,  or 
when  they  are  directly  attacked  in  any  way ;  or  in  general,  when 
any  impediment  or  obstruction  is  interposed  to  the  free  action  of 
the  legislative  assembly  or  its  members,  the  offence  is  denomina- 
ted a  breach  of  pfivilcfje. 

"  The  privileges  of  a  legislative  assembly  would  be  entu'ely  inef- 
fectual to  enable  it  to  perform  its  legitimate  fnnc'-tions,  if  it  had  no 


TARLIAMENTAEY  LVW  AND  LEGISLATIVE  PRFVILEGES.  5G7 

power  to  punish  offenders,  to  impose  disciplinary  regulations  upon 
its  members,  or  to  enforce  obedience  to  its  coniniands.  These 
powers  are  so  essential  to  the  authority  of  a  legislative;  assembly, 
that  it  cannot  well  exist  without  them  ;  and  they  are  consecjuently 
to  be  regarded  as  belonging  to  every  such  assembly  as  a  necessar}' 
incident.  The  privUc<jes  and  poicor.H  of  a  legislative  assembl}',  are 
therefore  so  far  connected  together,  that  the  latter  are  the  neces- 
sary complement  of  the  former,  a 

At  an  early  day,  in  England,  the  House  of  Commons,  under  the 
claim  of  privilege,  had  so  far  an'ogated  to  themselves  power,  as  to 
exercise  cxdmive  jurisdiction  in  all  cases  comicg  directly  before 
them ;  and  even  in  cases  in  which  they  were  only  incidentally  con- 
cerned, they  denied  to  all  other  tribunals,  the  right  to  question  their 
power,  not  only,  but  they  claimed  the  right  to  determine  for  them- 
selves, what  the  law  of  privilege  actually  was,  and,  to  declare  it 
fi'om  time  to  time  to  be,  whatever  their  will  and  pleasure,  and  their 
claimed  prerogative,  dictated  it  to  be.  But  this  arrogant  pretence 
was  carried  to  such  an  extent,  and  the  usurpation  became  so 
odious,  that  both  the  judicial,  and  legislative  authorities,  were 
called  in,  to  correct,  restrain,  modify,  and  limit  this  unauthorized 
abuse  of  assumed  power.  So  that,  since  the  statutes  of  13  Wil- 
Uam  III,  and  10  George  III,  Avhich  abridged  the  powers  and 
pri^^leges  of  parliament,  the  courts  have  taken  notice  of,  declare, 
and  decide,  the  extent  of  these  powers  and  privileges,  whenever  they 
arise  in  court ;  though  without  prejudice  to  the  right  of  the  house 
itself  to  decide  upon  the  question  in  an  equally  conclusive  manner, 
if  the  case  comes  within  their  jurisdiction. 

In  this  country,  so  far  as  privileges  of  legislative  bodies,  or  of 
the  individual  members  thereof  are  concerned,  they  are  beheved 
to  be  substantially  the  sanie,  as  now  modified  they  exist  in  Eng- 
land ;  but  the  jJOicers  of  legislative  bodies,  and  in  some  of  the 
states  their  j^^'ivileges,  rest  upon  constitutional,  or  statute  provisions. 
Therefore,  though  a  legislative  assembly  may  be  said  to  judge 
exclusively  of  its  privileges,  it  is  only  so  to  certain  intents  and  pur- 
poses, h 

In  England,  since  the  year  1700,  and  statute  of  10  George  III,  in 
1770,  the  powers  and  privileges  of  the  two  houses,  have  been  so  well 
a  Gushing  on  Legislative  Assemblies,  §  533 .        b  Coffin  v.  Coffin,  4  Mass.  32. 


568   .        PAELIAMENTARY  L.VW  AND  LEGISLATIVE  PRIVILEGES. 

defined,  regulated  and  limited  b}-  statute  direction,  and  judicial 
construction,  that  they  are  now  as  well  defined,  established  and 
knoAvn,  as  an}-  portions  of  the  common  law  ;  and  this  common  law, 
before  the  American  revolution,  was  adopted  and  admitted  in  this 
country,  as  controlling  and  applicable  to  the  colonial  and  provin- 
cial legislatures.  Since  the  revolution,  portions  of  this  common 
law  has  been  adopted  into  the  national ;  and  also  into  some  of  the 
state  constitutions ;  in  other  states,  it  is  regulated  and  limited  in 
their  statutes ;  with  such  omissions  and  restrictions,  additions  and 
modifications,  as  the  new  and  changed  circumstances,  and  more 
free  and  liberal  institutions  have  made  necessary  to  a  new  and  im- 
proved order  of  things. 

In  some  of  these  constitutions  and  statutes,  certain  powers  and 
privileges  are  enumerated  in  afiirmative  language ;  sometimes  ac- 
companied by  a  general  provision  covering  all  other  necessary 
powers  and  privileges ;  in  some,  negative  words  are  used  in  refe- 
rence to  particular  powers ;  in  some,  and  especially  in  the  state  of 
New  York,  there  is  an  express  provision  in  the  statute,  giving  cer- 
tain i)rivileges  to  members  of  the  legislature,  which,  by  legal  con- 
struction, excludes  all  other  privileges,  so  far  as  regards  third  per- 
sons, and  as  to  all  persons  except  individual  members  of  the  body 
themselves,  and  to  the  collective  body  of  the  assembly;  and  as  to 
tlieu'  jDOwers,  if  not  exj^ressed,  they  are  such  well  known  principles 
of  parhamentary  law  as  are  known  to  themselves,  to  the  courts, 
and  to  all  other  persons.  An  uncontrolled  power  in  a  legislative 
assembly,  equally  here,  as  in  England,  would  be  dangerous  to  the 
liberties  of  the  citizen. 

Cases  can  well  be  supposed,  perhaps  may  have  existed,  where 
an  uncontrolled  power  in  a  legislative  assembly  may  work  great 
injustice.  Such  cases,  however,  ought  to  be  the  exceptions.  Jus- 
tice Story,  in  his  work  on  the  constitution,  a  in  regard  to  this  point, 
has  wisely  said,  that  "  Public  bodies,  like  private  persons,  are  occa- 
sionally under  the  dominion  of  strong  passions  and  excitements  ; 
impatient,  irritable  and  impetuous.  Tlio  habit  of  acting  togethei, 
produces  a  strong  tendency  to  what,  for  the  want  of  a  better  word, 
may  be  called  the  corporation  spirit,  or  what  is  so  happily  exj)res- 
sed  in  a  foreign  phrase,  Vesprit  du  corps.  Certain  popular  leaders 
a  Story  on  Const.  §  550 


BllEACH  OF  rRn'ELEGE.  5G9 

often  acquire  au  extraordinary  ascendancy  over  tlic  body,  hy  their 
talents,  tlieir  eloquence,  tlieir  intrigues,  or  their  cunning.  Mea- 
sures are  often  introduced  in  a  hurry,  and  debated  with  little  care, 
and  examined  with  less  caution.  The  very  restlessness  of  many 
minds,  produces  an  impossibility  of  debating  with  much  delibera- 
tion, when  a  measure  has  a  plausible  asjiect,  and  enjoys  a  momen- 
tary favor.  Nor  is  it  infrequent,  to  overlook  well  founded  objec- 
tions to  a  measure,  not  only  because  the  advocates  of  it  have  httle 
desire  to  bring  them  in  review,  but  because  the  opponents  are 
often  seduced  into  a  credulous  silence.  A  legislative  body,  is  not 
ordinarily  apt  to  mistrust  its  own  powers,  and  far  less  the  tempe- 
rate exercise  of  those  powers.  As  it  prescribes  its  own  rules  for 
its  own  deliberations,  it  easily  relaxes  them  whenever  any  pres- 
sure is  made  for  an  immediate  decision.  If  it  feels  no  check  but 
its  own  will,  it  rarely  has  the  firmness  to  insist  upon  holding  a 
question  long  enough  under  its  own  view,  to  see  and  mark  it  in  all 
its  bearings  and  relations,  &c." 

Among  the  subjects  or  offences  which  a  legislative  assembly 
may  adjudge  to  be  a  contempt,  and  for  which  they  may  inflict 
punishment,  and  thus  interfere  with  personal  liberty  of  the  citizen, 
is  that  of  a  breach  of  privilege  of  the  house,  or  of  one  of  its  mem- 
bers. It  is  highly  important  for  preservation  of  order,  and  for  the 
protection  of  legislative  bodies  in  the  due  and  proper  discharge  of 
their  duties  for  the  state,  that  they,  and  each  of  its  component 
members,  should  possess  freedom  of  action,  and  be  fully  protected 
in  their  persons ;  that  they  should  not  be  withdrawn  or  prevented 
fi'om  attendance  by  causes  of  a  less  important  character ;  but,  that 
for  a  certain  time,  at  least,  they  should  be  excused  from  obeying 
any  other  call,  not  so  immediately  necessaiy  for  the  services  of 
the  state  ;  and  hence  it  has  always  been  admitted,  that  the  mem- 
bers of  a  legislative  assembly,  during  their  ser\-ice  and  attendance 
as  such,  are  entitled  to  be  exempted  fi*om  several  duties,  and  not 
considered  as  Hablo  to  some  legal  processes  to  which  other  citizens 
are  by  law  obliged  to  pay  obedience,  a 

They  are  entitled  by  acknowledged  parliamentary  law,  not  only 
to  the  right  of  fi'ee  attendance,  but  to  be  protected  in  the  free  en- 
joyment of  the  right  of  speech,  debate,  and  determination  in  refer- 

a  Cufihing's  Legislative  Assembly,  §  529. 
72 


570  BLEACH   OF  riJlMLEGE. 

ence  to  all  subjects,  upou  "which  they  may  rightfully  be  called 
upon  to  deliberate  and  act ;  and  it  is  established  as  a  general  prm- 
ciple  of  parhamentar}'  law,  that  no  member  of  a  legislative  body 
can  be  questioned  or  punished  by  any  other  court  or  authority, 
but  only  by  the  assembly  itself  of  which  he  is  a  member,  for  any- 
tlmig  said  or  done  by  him  m  that  capacity.  These  rights  ami 
immunities,  belong  not  only  to  the  member  himself  directly,  but 
also  indirectly  to  the  assembly  itself.  But  since  the  day  of  the 
English  statutes  above  referred  to,  neither  house  of  the  British 
parUament  have  ever  gone  the  length  of  claiming  an  exemption 
from  the  operation  of  criminal  laws ;  or  of  attempting  to  protect 
themselves  from  any  prosecution  for  treason,  felony,  or  breach  of 
peace ;  and  down  as  late  as  1831,  Lord  Brougham  declared,  a 
"That  the  true  gi'oundto  use  in  regard  to  the  law  of  privilege, 
is,  that  it  never  extends  to  protect  from  punishment,  though  it 
may  extend  to  protect  from  cii-il  process,  and  that  it  never  extends 
to  protect  from  civil  process  when  the  object  of  the  process  is  the 
delivery  up  of  a  person  wrongfully  detained  from  a  party,  and  that 
it  is  upon  tliis  ground,  that  the  jurisdiction  of  the  courts  can  safely 
and  securely  rest." 

It  can  hardly  be  warranted  in  this  work,  to  trace  the  various 
discrepancies  and  differences  existing  in  constitutional  provisions 
and  statutes  relating  to  parliamentary  law  in  the  several  states  of 
the  Union.     To  do  it  justice,  it  would  alone  fill  a  volume. 

In  this  country,  though  the  same  general  principles  of  parlia- 
mentary law  prevail  as  in  England  from  whence  we  derived  it, 
yet  what  are  called  the  law  of  jyivikges  of  legislative  assemblies, 
varies  in  different  states  of  the  Union,  and  is  different  between 
the  assemblies  of  the  several  states,  and  that  of  the  national 
assembly.  There  is  no  such  thing,  in  this  country,  as  a  settled 
and  uniform  law  of  privilege  of  members  to  legislative  assem- 
blies. In  the  national  legislature,  the  law  of  privilege  is  secured, 
and  defined,  by  the  express  provisions  of  the  national  constitution. 
In  some  of  the  inclependent  states  it  is  seciued  and  defined  in  their 
state  constitutions ;  in  others  only  by  statute.  Among  these,  the 
law  of  privilege  is  not  expressed  in  language  entirely  uniform. 
In  the  state  of  New  York  the  privilege  of  members  is  conferred 
a  Mr.  Long,  Wellesley's  case,  2  Eals.  &  3  Mylne  673. 


BREACH  OF  TRIYILEGE.  571 

by  statute  in  the  following  words :  a  "  Eveiy  member  of  the 
legislature  shall  be  privileged  from  arrest  on  civil  process,  duidng 
his  attendance  at  the  session  of  the  house  to  which  he  shall  l)elonK, 
except  on  process  issued  in  any  suit  brought  against  him  for  any 
forfeiture,  misdemeanor,  or  breach  of  trast  in  any  office  or  place 
of  public  trust  held  by  him.  He  shall  enjoy  the  like  privilege  for 
the  space  of  fourteen  days  previous  to  such  session,  and  also  while 
going  and  returning  from  such  session,  provided  such  time  do  not 
exceed  fourteen  days ;  and  also  duiing  any  adjournments  that  do 
not  exceed  fourteen  days ;  and  also  while  absent  from  the  session 
by  leave  of  the  house.  These  privileges,  also  extend  to  officers  of 
the  house  while  in  actual  attendance,  and  each  house  has  the 
power  to  pmiisli  as  a  coidcmpt,  and  by  imprisonment,  a  breach  of 
its  pri\ileges,  or  of  the  privileges  of  its  members,  the  an-esting  of 
a  member,  and  for  other  disorderly  conduct  against  its  rules  or 
orders  therein  specified." 

This  power  of  judging,  and  of  inliicting  pimishment  for  an  ad- 
judged contempt,  or  breach  of  pri^ilege  conmiittcd  against  them- 
selves, and  judged  of  by  themselves,  however  dangerous  in  theory, 
inasmuch  as  these  bodies,  thus  become  their  own  accusers,  wit- 
nesses and  judges,  is  found  by  experience,  to  have  been  subject  to 
very  little  abuse.  Their  oato  self-respect,  and  a  due  respect  to 
pubKc  opinion,  public  censure,  and  public  criticism  to  which  they 
are  amenable,  it  is  believed,  will  generally  restrain  them  fi'om  un- 
reasonable acts  of  injustice  to  the  individual  citizen.  Perhaps  the 
only  danger  to  be  apprehended,  is,  in  times  of  high  political  excite- 
ment, when  bodies  of  this  kind,  controlled  by  popular  and  imprin- 
cipled  leaders,  excite  a  spirit,  which  Judge  Story  calls,  Vesprit  du 
corps,  against  some  supposed  violator  of  privileges  or  dignity  of 
the  body. 

A  more  real  and  serious  danger  to  the  integiity  of  the  govern- 
ment, and  to  a  co-ortlinate  branch  of  the  sovereignty  of  the  gov- 
ernment, is  when  the  legislative  assembly,  in  either  body  of  it, 
shall  attempt  to  exercise  tliis  seemingly  milimited  power  of  pun- 
ishment for  contempts,  upon  the  representatives  of  another  co-or- 
dinate and  coextensive  department  of  the  sovereign  power  of  the 
state. 

a  1  Kev.  Stat.  154 


572  EEEAcn  or  rumLEGE. 

In  the  whole  history  of  this  goYcnamcnt,  and  of  the  general 
harmonious  workings  of  its  system  in  the  division  of  its  sover- 
eignty into  the  three  distinct  and  co-ordinate  departments  of  its 
power, — the  executive,  the  legislative,  and  the  judicial, — each  being* 
independent  of  the  other  within  its  proper  sphere  of  action,  and 
each,  by  oiu'  theory  of  government,  having  no  higher  tribunal  to 
call  them  to  account  for  their  independent  action ;  only  a  smgle 
case  has  occuiTcd,  in  the  nation  or  in  any  state,  in  which  a  con- 
flict has  arisen  between  them,  by  which,  one  of  these  co-ordinate 
departments  has  attempted  to  coerce  another,  to  wit :  one  branch 
of  the  legislative  body,  the  assembl}-  of  the  state  of  New  York,  at- 
tempting to  hold  the  judicial  department  of  the  same  state,  respon- 
sible for  a  claimed  breach  of  privilege  of  the  assembly,  in  issuing 
process  of  arrest  by  attachment  against  a  member  of  assembly, 
for  contempt,  in  the  disobedience  to  a  subpoena  issued  out  of  a 
criminal  court  of  original  jurisdiction  of  the  said  state. 

The  case  was  novel,  and  unprecedented.  It  was  the  occasion  of 
excitement  and  interest.  It  was  discussed  on  the  part  of  the  as- 
sembly by  a  labored  report  by  a  committee  of  the  house  of  assem- 
bly, in  behalf  of  that  department  of  the  government  in  which  the 
breach  of  privilege  was  claimed,  and  the  right  to  inflict  punish- 
ment asserted,  as  against  the  member  of  the  court  whose  action 
was  complained  of.  The  judge  appeared  on  the  day  appointed, 
and  argued  the  question  in  defence  of  liis  co-ordinate  department 
of  the  government.  The  result,  settled  no  parliamentary  law,  or 
question  of  breach  of  pri\dlege  ;  its  discussion,  nevertheless  pre- 
sented the  different  views  of  these  co-ordinate  departments  of  the 
government,  as  to  their  respective  powers  and  privileges,  in  such 
a  manner  as  to  make  the  report  of  the  assembly  and  the  argu- 
ment of  the  judge  in  defence  of  the  judiciary,  a  matter  sufficiently 
important  to  be  presented  to  the  profession,  and  to  the  co-ordinate 
departments  of  the  government  for  consideration,  whenever  it  is 
brought  in  question  there. 


EREACII  or  rr.lYILEGE.  573 

IN  THE   MATTEK  OF  HON.  PL.VTT  POTTEIJ,   MUIAIGNED   AT  THE    BAIt   OF 
THE  ASSEMBLY,  FOIl  ALLEGED  BIIEACH   OF  riHVILEGE. 

On  the  21st  clay  of  JaDUiiiy,  1870,  a  subpoena,  requiring  one 
Henry  Eay  to  appear  and  testify  as  a  -witness  in  a  certain  criminal 
[)roceeding  pending  before  the  gi-and  jury,  at  the  Saratoga  Oyer 
and  Terminer,  was  issued  under  the  authority  of  the  court,  the 
Hon.  Piatt  Potter,  a  justice  of  the  Supreme  Court,  presiding,  and 
was  duly  served  on  Mr.  Piay,  at  tin;  city  of  Albany.  He  declined 
to  obey  its  mandate,  on  the  ground  of  his  privilege  as  a  member 
of  the  assembly  of  the  state  of  New  York.  Winsor  B.  French,  the 
district  attorney  of  Saratoga  county,  thereupon  applied  to  the 
coiu't  for,  and  procured,  an  attachment  against  Mr.  Hay  for  such 
disobedience,  upon  which  the  latter  was  arrested,  taken  before  the 
grand  jury,  and  required  to  testify  on  such  proceeding.  The  arrest 
of  Mr.  Pay  created  some  excitement  in  the  assembly,  of  which  he 
Avas  a  member,  as  it  v\-as  claimed  to  be  a  flagrant  violation  of  the 
privilege  of  that  body.  A  committee  was  thereupon  appointed, 
to  investigate  the  matter  of  the  arrest.  Subsequently  the  c.-^m- 
!:iittee  made  a  report,  in  which,  after  setting  forth  the  facts  of  the 
uhest,  and  of  the  examination  before  them  of  Justice  Potter  and 
others,  relative  thereto,  they  proceeded  as  follows  : 

"The  question  therefore  arises,  and  the  only  question  which 
your  committee  is  called  upon  to  consider  is,  whether  or  not  Mr. 
Hay  was  exempt  from  arrest  under  the  process  issued  in  this  case. 

The  privilege  of  legislative  bodies  is  as  old  as  the  common  law, 
from  which  we  have  gathered  our  liberties,  and  by  which  the  rights 
of  the  people  have  been  and  are  to  be  protected.  It  is  older  than 
Marjna  Charta,  older  than  the  ^xvii  of  habeas  corpus,  older  than  the 
courts  either  of  law  or  equit}-,  and  from  the  parliament  of  a  nation 
and  legislatures  of  the  states  have  come  those  laws  and  rales  of 
practice  which  are  calcidated  to  secure  to  the  citizen  all  the  bene- 
Ilts  and  privileges  conferred  by  the  government  under  which  he 
may  live.  Yoiu'  committee,  m  the  examination  of  the  question, 
have  found  that,  in  this  country,  the  violations  of  parliamentary 
privilege,  either  of  members  of  congress  or  of  members  of  state 
legislatures,  have  been  rare.  In  the  earlier  history  of  the  British 
parliament,  when  the  house  of  commons,  for  long  years,  struggled 
against  the  prerogative  of  the  crown,  against  the  overbearing  aris- 


574  BREACH  or  rrJTILEGE. 

tocracy  of  the  lords,  and  against  the  assumption  of  power  on  the 
part  of  the  courts,  which  wepe  for  centuries  the  mere  servants  and 
tools  of  the  crown,  we  find  many  instances  where  the  connnons 
secured  and  maintained  the  privileges  of  members  of  that  body. 

In  the  case  of  Shirley  v.  Fagg,  as  far  back  as  1675,  Mr.  Fagg, 
a  member  of  the  house  of  commons,  was  summoned  on  a  process, 
issuing  from  the  court  of  chancery,  to  appear  before  the  bar  of  the 
house  of  lords  and  plead  to  an  appeal.  The  house  of  commons 
held  this  to  be  an  unquestioned  violation  of  its  privilege,  and 
passed,  on  the  18th  of  May,  1675,  the  following  resolution  : 

'  Besoh-al,  That  it  is  the  undoubtful  right  of  this  house  that 
none  of  their  members  be  summoned  to  attend  the  house  of  lords 
during  the  session  or  privileges  of  the  parliament.'     (3  Grey,  170.) 

On  the  20th  of  May,  1675,  Sir  Thomas  Leigh,  from  a  commit- 
tee appointed  by  the  house  of  commons,  gave  the  following,  among 
other  reasons,  why  a  member  of  the  commons  was  not  compelled 
to  appear  before  the  bar  of  the  house  of  lords,  and  this,  it  will  be 
borne  in  mind,  was  when  the  house  of  lords  was  sitting  as  a  court 
of  appeals  of  the  British  realm  :  '  The  privilege  of  a  member  is  the 
privilege  of  the  house,  and  is  a  restraint  to  the  proceedings  of  in- 
ferior courts,  but  not  to  the  house  itself ;'  thus  implying  that  the 
house  whose  privilege  has  been  violated  is  the  only  body  possess- 
ing the  right  to  pass  upon  the  question  whether  such  privilege 
has  or  has  not  been  violated.  (2  Grey,  399.)  It  is  laid  down  as 
a  principle  in  parliamentary  law,  in  England,  that  the  privilege  of 
parliament  extends  to  all  cases  except  three — treason,  felony  and 
breach  of  the  peace.     (4  Inst.  25  ;  Lex  Pari.  381.) 

Sir  William  Blackstone  lays  down  the  following  as  the  privi- 
leges of  parliament :  '  1st.  They  are  at  all  times  exempted  from 
question  elsewhere  for  anything  said  in  their  own  house  during  the 
time  of  privilege.  2d.  Neither  a  member  himself,  his  wife  or  ser- 
vants, for  any  matter  of  their  own,  may  be  arrested  on  mesne  pro- 
cess, in  any  civil  suit.  3d.  Nor  be  detained  under  execution, 
though  levied  before  the  time  of  privilege.  4th.  Nor  impleaded, 
cited  or  suhpmnaed  in  any  court.  5th.  Nor  summoned  as  a  wit- 
ness or  juror.  6th.  Nor  may  their  lands  or  goods  be  distrained. 
7th.  Nor  their  persons  assaulted  or  character  traduced.'  (1  Black- 
stone,  163,  164.) 


BREACFI   OF  nmiLEGE.  575 

Mr.  Tbomiis  Jelicrsou,  in  liis  note  ui)on  this  quotation  of  lilack- 
stone,  says :  '  The  constitution  of  the  United  States  has  only 
privileged  senators  and  representatives  tliemselves  from  the  single 
act  of  arrest  in  all  cases  except  treason,  felony  and  breach  of  the 
peace,  during  their  attendance  at  the  session  of  their  respective 
houses,  and  in  going  to  and  returning  from  the  same,  and  from 
being  questioned  in  any  other  jilace  for  any  speech  or  debate  in 
either  house.' 

'  Under  the  general  authority  to  make  all  laws  necessary  and 
proper  for  carrying  into  execution  the  powers  given  them,  they 
may  provide  by  law  the  details  which  may  be  necessary  for  giving 
full  effect  to  the  enjoyment  of  this  privilege.'  He  goes  on  and 
says  further :  '  The  act  of  arrest  is  void  ab  initio.  (2  Strange,  989.) 
The  member  arrested  may  be  discharged  on  motion.  The  arrest, 
being  unlawful,  is  a  trespass,  for  which  the  officer  and  others  con- 
cerned are  liable  to  action  or  indictment  in  the  ordinary  courts  of 
justice,  as  in  other  cases  of  imauthorized  arrest.  The  court  before 
wliicli  the  process  is  returnable  is  bound  to  act  as  in  other  cases 
of  unauthorized  proceeding,  and  Kable  also,  as  in  other  similar 
cases,  to  have  its  proceedings  stayed  or  corrected.'  He  says  fur- 
ther :  '  This  privilege  from  arrest,  privileges  of  course  against  all 
process,  the  disobedience  to  which  is  punishable  by  an  attach- 
ment of  the  person,  (the  very  case  in  iwint,)  as  a  subpoena  ad  re- 
spondendum or  tcstijicandnm  or  a  summons  on  a  jury ;  and  with 
reason,  because  a  member  has  superior  duties  to  perform  in 
another  place.'  He  goes  on  to  say :  '  When  a  representative  is 
withdrawn  from  his  seat  by  summons,  the  people  whom  he  repre- 
sents lose  their  voice  in  the  debate  and  vote,  as  they  do  in  his  vol- 
untary absence.  When  a  senator  is  withdi'awn  by  summons,  his 
state  loses  half  its  voice  in  debate  and  vote,  as  it  does  in  his 
voluntary  absence.  The  enormous  disparity  of  evil  admits  of  no 
comparison,' 

In  December,  1795,  the  house  of  representatives  of  the  United 
States  committed  two  persons,  of  the  names  of  Eandall  and  Whit- 
ney, for  attempting  to  coiTupt  the  integrity  of  certain  members, 
which  they  considered  as  a  contempt  and  breach  of  the  privilege 
of  the  house  ;  and  the  facts  being  proved,  Whitney  was  detained  in 
confinement  a  fortnight  and  Eandall  three  weeks,  and  was  repii- 


576  BEEACn   OF  rEmLEGE. 

manded  by  the  speaker.  The  editor  of  the  Aurora,  of  Philadel- 
phia, William  Duane,  was,  for  defamatory  articles,  declared  to  be 
guilty  of  breach  of  the  privilege  of  the  senate. 

In  the  debate  in  the  Duane  case,  Mr.  Senator  Pinckney,  who 
opposed  the  proceedings,  after  citing  the  privileges  of  congress, 
says  that  each  house  has  power  to  enforce  complete  order  and  de- 
corum within  their  own  chamber ;  to  clear  the  galleries  if  an  audi- 
ence is  unruly,  and  to  punish  their  own  members ;  to  take  care 
that  no  arrests  except  for  treason,  felony  or  breach  of  the  peace, 
shall  keep  their  members  from  their  duty. 

There  can  be  no  doubt  but  that  the  legislature  of  the  state  of 
New  York  has  as  extensive,  if  not  more  extensive,  privileges  than 
the  congress  of  the  United  States.  It  is  the  successor  of  the  colo- 
nial legislature,  which  derived  its  privileges  from  the  parliament- 
ary law  of  England,  and  is  not  restricted  in  its  privileges  by  the 
constitution  of  the  state.  Mr.  Pinckney,  in  the  speech  quoted 
above,  seemed  to  intimate  that  the  privileges  of  state  legislatures 
were  more  in  their  discretion  than  those  of  congress. 

The  constitution  of  this  state,  of  1777,  declares  that  the  assem- 
bly should  enjoy  the  same  privileges,  and  do  business  in  Hke 
manner  as  the  assembly  of  the  colony  of  New  York  of  right  form- 
e]-ly  did. 

It  is  admitted  that  the  parliament  of  England,  and  the  courts  of 
law,  have  cognizance  of  contempts,  and  are  authorized  to  punish 
for  such  contempts.  It  is  also  admitted  that  the  state  legislatures 
have  equal  authority,  because  their  powers  are  plenary  ;  they  re- 
present their  constituents  completely,  and  possess  all  then'  powers, 
except  such  as  their  constitutions  have  expressly  denied  them ; 
that  congress  has  no  natural  or  necessary  power,  nor  any  powers 
but  such  as  are  given  to  it  by  the  constitution.  Therefore,  the 
constitution  expressly  and  directly  exempts  members  of  congi-ess 
from  personal  arrest,  and,  therefore,  with  congress  no  further  law 
is  necessary,  the  constitution  itself  being  the  law ;  still,  under  the 
provision  of  the  constitution,  which  confers  upon  congress  the  right 
to  make  all  laws  necessary  and  proper  for  carrying  into  execution 
the  powers  vested  by  the  constitution  in  them,  it  would  be  within 
their  power  to  establish  any  regulation  of  law  in  regard  to  the 
breach  of  their  privilege,  which  they  might  desire.     It  is  laid  down 


BREACH  OF  TRIVILEGE.  577 

by  parliamentary  ■writer.s  that,  '  vxvm  in  oases  of  treason,  felony 
and  breach  of  tlic  peace,  to  ^\lliL•]l  ])iivilege  does  not  extend,  as  to 
substance,  yet  in  parliament  ameml)er  is  })rivileged  as  to  the  mode 
of  proceeding.  The  case  is  first  to  be  laid  before  the  house,  that 
it  may  judge  of  the  fact  and  of  the  grounds  of  the  accusation,  and 
how  far  forth  the  manner  of  the  trial  may  concern  their  privilege. 
Otherwise  it  would  be  in  the  power  of  other  branches  of  the  gov- 
ernment, and  even  of  every  private  person,  under  a  pretense  of  a 
charge  of  treason,  felony  and  breach  of  the  peace,  to  take  any  man 
from  his  service  in  the  house,  and  so  as  many,  one  after  another, 
as  would  make  the  house  what  he  desired  it  should  be.' 

The  rule  in  this  countiy  has  not  been  carried  to  this  extent,  but 
the  ruling  is  well  estal)lislied  that,  where  any  body  desu'es  the  ap- 
pearance of  a  member  of  the  legislature,  or  of  congress,  as  a  wit- 
ness, or  in  any  other  manner,  first  the  permission  of  the  house  of 
which  he  is  a  member  is  asked,  and  then  the  question  is  before  the 
house,  whether  they  will  or  will  not  grant  permission  to  the  mem- 
ber to  attend  before  any  court  or  other  house  of  parliament.  The 
senate  of  the  state  of  New  York  has  no  right  to  summon  within 
its  presence,  or  before  any  committee  of  that  body,  any  member 
of  the  assembly,  without  first,  in  due  and  courteous  form,  asking 
permission  of  the  assembly  that  such  member  may  be  summoned. 
If,  then,  the  senate  of  the  state  has  no  such  power,  can  it  in  rea- 
son be  contended  that  a  court,  an  inferior  body,  and,  to  a  great 
extent,  under  the  direction  and  control  of  the  legislatui'e,  shall 
have  the  power  to  subpoena,  at  its  will,  a  member  of  either  house 
of  the  legislature,  and  take  him  from  his  duties  as  a  representa- 
tive of  the  people  ?  Your  committee  are  of  the  opinion  that  no 
such  doctrine  can  be  maintained,  upon  any  well  settled  and 
grounded  principles  of  parliamentary  law,  as  applical)le  either  to 
the  parliament  of  England,  or  to  any  legislative  bodies  in  this 
country,  and  your  committee  can  readily  see  the  great  danger  to 
which  such  assumption  of  power  on  the  part  of  the  courts  would 
inevitably  lead. 

Your  committee  have  examined,  with  great  care,  the  instances 

of  breaches  of  privilege  of  the  congress  of  the  United  States,  the 

first  parliamentary  body  in  this  country,  and  they  find  but  few 

instances  where  the  privileges  of  either  house  of  congi-css  have 

73 


578  BEEACH  or  TEn'ILEGE. 

been  violated.  On  the  22d  of  June,  1822,  it  seems  that  an  assist- 
ant doorkeeper  of  the  senate  of  the  United  States  had  been  sub- 
poenaed before  a  committee  of  the  house  of  representatives,  when 
Mr.  Senator  Holmes,  from  the  state  of  Maine,  offered  a  resolution 
that  said  assistant  doorkeeper  be  permitted  to  attend  as  such  wit- 
ness. During  the  debate  on  the  resolution,  Mr.  Foote,  a  senator 
fi'om  Connecticut,  used  the  following  language :  '  That  as  the  officers 
of  the  senate  were  not  subject  to  be  taken  from  their  duties  by  the 
process  of  any  court,  so  neither  could  a  doorkeeper,  by  any  pro- 
cess from  the  other  house,  be  taken  from  his  duties.'  It  was  con- 
ceded that  the  doorkeeper  was  only  required  to  attend  before 
the  committee  during  the  recess  of  the  senate,  and  therefore  the 
discussion  ceased.  This  statement  by  Senator  Foote  seems  to 
show  the  fact  to  be,  that  up  to  that  time  there  was  no  question  but 
what  members  of  congress,  and  the  officers  thereof,  were  exempt 
from  obeying  any  writ  of  subpoena,  whether  issued  by  a  court  or 
by  either  house  of  congress. 

Your  committee  have  found  but  two  English  cases  in  thek  re- 
searches, which  would  in  the  least  question  the  prmciples  they 
believe  govern  questions  of  this  character.  The  one  is  the  case 
reported  in  1  Salkeld,  279,  (Dominus  Kex  v.  Dominus  Preston.) 
There  Lord  Preston  had  been  committed  by  the  court  of  quarter 
sessions  for  refusing  to  appear  and  testify  before  the  grand  jury  in 
a  case  of  high  treason.  He  was  brought  before  the  court  of  long's 
bench  on  a  writ  of  habeas  corpus,  when  Lord  Holt  nsed  the  dic- 
tum that  it  was  a  great  outrage,  and  had  he  been  present  at  the 
committal  he  would  have  imposed  a  fine.  It  does  not  appear  that 
Lord  Preston  was  even  a  member  of  parliament,  or  that  parlia- 
ment was  in  session  at  the  time ;  nor  does  it  appear  that  he 
pleaded  his  privilege,  either  as  member  of  parliament  or  as  a  peer 
of  the  realm.  And  under  the  English  rule,  as  your  committee 
understands  it,  had  parliament  not  been  in  session,  and  had  the 
time  of  exemption  after  the  session  of  parliament  expired,  then 
Lord  Preston  would  not  have  been  exempt  from  testifying  before 
the  grand  juiy  in  a  case  of  high  treason.  The  next  is  the  case  of 
Lord  Ferrers,  Avliich  occun^ed  in  1757.  An  attachment  issued 
against  Lord  Ferrers  out  of  the  court  of  Westminster  Hall  for  re- 
fusing to  obey  a  writ  of  habeas  corp/us  which  liad  been  issued, 


IJUKACH   OF  nm'ELEGE.  579 

requiring  liiin  to  procluco  in  the  court  of  Westminster  Hull  the 
body  of  Lady  Ferrers,  she  allej^ang,  Ijy  prayer  adchressed  to  the 
chief  justice,  that  the  conduct  of  her  husband  was  so  harsh,  tyran- 
nical and  abusive,  and  so  eij  langered  her  peace  of  mind  and  her 
life,  that  she  recjuired  to  be  i)resent  at  the  court  to  present  her 
petition,  and  ask  its  protection.  In  that  case  it  was  a  refusal  to 
obey  a  Mrit  of  habeas  corpus,  Avhere  the  party  who  was  required 
to  obey  such  writ  had,  as  appeared  to  the  court,  been  guilty  of  a 
breach  of  the  peace,  to  wit :  physical  abuse  to  Lady  Fen-ers. 
Under  these  circumstances  the  house  of  lords  passed  the  following 
resolution :  'It  is  hereby  ordered  and  declared  that  no  peer  or 
lord  of  parUament  hath  privilege  against  being  compelled,  by  pro- 
cess of  the  courts  of  Westminster  Hall,  to  pay. obedience  to  a  Avrit 
of  habeas  coi'pus  directed  to  hiui.' 

The  writ  of  habeas  corpus  re(]uires  not  the  presence  of  the  mem- 
ber himself,  but  the  production  of  some  person  alleged  to  be  in  liis 
custody  or  under  his  control,  and  therefore  can  be  complied  with 
without  the  necessity  of  the  member  being  absent  from  his  duties 
in  the  liouse  of  which  he  may  be  a  member,  and  is  very  different 
from  arrest  under  a  process  issued  out  of  coui-t,  which  actually 
takes  the  body  of  the  member,  and  therefore  takes  him  from  his 
duties  in  the  house  to  which  he  has  been  elected. 

The  people  of  the  state  of  New  York  very  early  took  into  con- 
sideration this  question  of  privilege ;  and  the  legislature,  as  far 
back  as  the  20tli  of  February,  1788,  passed  the  following  statute  : 

'  Every  member  of  the  legislature  shall  be  privileged  from  arrest 
on  civil  process  during  his  attendance  at  the  session  of  the  house 
to  which  he  shall  belong,  except  on  process  issued  in  any  suit 
brought  against  him  for  any  forfeiture,  misdemeanor  or  breach  oi 
trust  in  any  office  or  place  of  public  trust  held  by  him.'  (Laws  of 
1788 ;  1st  ed.  of  Ecviscd  Statutes,  vol.  1,  p.  154.) 

This  quahfication  would  indicate  that  in  all  other  cases  the 
member  was  absolutely  exempt  from  arrest. 

'  The  gentlemen  who  appeared  before  the  committee  seemed  to 
press  very  strongly  the  idea  that  an  attachment  was  not  a  civil 
process.  There  can  be  no  question  but  what  the  subpa}na  issued 
in  this  case  was  a  civil  process,  and,  under  the  authorities  above 
cited,  void  ah  initio.     Therefore  vour  committee  cannot  see  bv 


580  BEEACH  OF  PEIYTLEGE. 

what  force  of  reasoiiiug  an  attuclimeut  issued  against  a  person  foi 
non-compliance  with  a  summons  of  subpoena  can  be  tortured  into 
a  criminal  process.     In  other  words,  your  committee  are  of  the 
opinion  that  the  proceedings  are  void  from  the  beginning,  and  that 
no  legal  process  can  be  founded  upon  one  which  was  void  of  itself. 
If  a  member  was  privileged  from  attending  on  the  summons  of  a 
grand  jury  in  the  first  place,  his  refusal  was  no  contempt  of  the 
court  out  of  which  such  process  issued,  for  he  had  committed  no 
offense.     Ho  had  simply  availed  himself  of  a  right  which  the 
statute  of  the  state  and  parliamentary  law  gave  him ;  and  your 
committee  is  of  opinion  that  it  is  a  novel  doctrine,  dangerous  in 
itself,  that  a  person  availing  himself  of  the  privilege  granted  to  him 
by  the  laws  and  constitution  of  the  land,  becomes  guilty  of  a  crime 
and  is  Hable  to  arrest  for  the  exercise  of  the  privilege  thus  con- 
fen-ed  upon  liim.     The  distinguished  judge  himself  admitted  the 
danger  to  wliich  the  constraction  of  the  statute,  which  he  seemed 
to  deske  to  press  upon  the  committee,  would  lead,  and  it  needs  no 
argument  to  show  how  dangerous  it  would  be  if  such  a  course 
were  allowed  to  be  pursued.     There  are  sixty-two  counties  in  this 
state.     There  are  sixty-two  grand  juries  sitting,  m.any  of  them 
during  the  session  of  the  legislature.     Suppose  it  established  that 
a  member  is  Hable  to  arrest  for  disobeying  a  summons  to  appear 
before  a  grand  jury.     How  easy  would  it  be  for  designing  men  to 
thus  deprive  the  house  of  members  to  an  extent  sufficient  to  em- 
barrass its  business  ;  or  again,  for  designing  persons  to  change  the 
political  complexion  of  the  house  from  one  party  to  another,  by 
getting  up  fictitious  charges  before  a  grand  jury  and  issumg  sub- 
poenas to  members,  and  on  their  non-compliance,  issuing  attach- 
'  ments,  and  causing  their  arrest  and  transportation  to  the  difierent 
shire  towms  of  the  covmties.     Your  committee  deem  it  not  neces- 
sary to  follow  this  line  of  argument.     The  mere  statement  of  it  is 
sufficient  to  show  how  dangerous  such  a  rule  would  be. 

Finally,  your  committee,  in  full  view  of  the  facts,  and  after  a  full 
consideration  of  the  law  and  precedent  governing  cases  of  this 
kind,  have  come  to  the  conclusion  that  the  arrest  on  January  21, 
1870,  of  the  Hon.  Henry  Eay,  a  member  of  the  assembly  from  the 
first  district  of  the  county  of  Ontario,  on  an  attachment  issuing 
out  of  the  court  of  oyer  and  terminer,  then  being  held  in  the 


BKEACn   OF  I'KIVILEGE.  oSl 

couuty  of  Saratoga,  of  Avhich  the  lion.  Tlatt  rotter  was  presiding 
justice,  was  a  high  breach  of  the  privileges  of  this  house  by  said 
Potter,  aud  deserves  the  censure  of  this  house.  And  3'our  com- 
mittee are  furtlier  of  the  opinion,  tliat  "\V.  B.  French,  in  causing 
the  issuing  of  sucli  attachment,  Avas  guilt}'  of  a  high  breach  of  the 
privileges  of  this  house  ;  aud  that  the  said  Windsor  B.  French, 
district  attorney  as  aforesaid,  deserves  the  censure  of  this  house. 
Your  committee  are  also  of  the  opinion,  that  the  arrest  of  Henry 
Ray,  in  the  city  and  county  of  Albany,  by  Mr.  Elisha  D.  Bene- 
dict, a  deputy  sheriff  of  the  county  of  Saratoga,  was  a  high  breach 
of  the  privileges  of  this  house,  and  that  said  officer  deserves  the 
censure  of  this  house." 

On  the  l^th  day  of  February,  1870,  the  Hon.  Piatt  Potter  had 

served  upon  him,  by  the  sergeant-at-arms  of  the  assembly,  the 

following  notice  and  resolutions : 

State  of  New  York,  in  Assembly,  I 
Ajlbaxy,  Feb.  11,  1870.  f 

Hon.  Platt  Potter: 

Sir — This  day  the  assembly  of  the  state  of  New  York,  passed  the  following 
resolutions: 

Jlesolved,  That  the  Hon.  Piatt  Potter,  Justice  of  the  Supreme  Court  of  the 
fourth  judicial  district,  be  summoned  aud  required  to  appear  before  the  bar  of 
this  House,  for  a  high  breach  of  its  privilege  in  issuing  an  attachment  for  the 
arrest  of  the  Hon.  Henry  Eay,  a  member  of  the  Assembly  of  the  state  of  New 
i'ork,  from  the  first  district  of  the  couuty  of  Ontario ;  that  the  House  will  then 
take  siich  action  as  the  House  in  ita  judgment  may  see  fit. 

Fiesolved,  That  Hon.  Piatt  Potter,  residing  in  the  city  of  Schenectady,  in  the 
state  of  New  York,  be  and  he  is  herebj-  ordered  to  attend  at  the  bar  of  this  House, 
on  the  16th  day  of  February,  inst.,  at  12  m.,  at  which  time  he  will  have  oppor- 
tunity to  make  explanation  of  his  conduct  in  issuing  the  attachment  for  the  arrest 
of  Hon.  Henry  Kay,  a  member  of  this  House;  aud  this  Assembly  will  then  pro- 
ceed to  take  further  order  on  the  subject. 

By  order  of  the  Assembly, 

C.  W.  ARMSTRONG,  Clerk. 

At  12  o'clock  at  noon  of  the  IGth  day  of  Febniary,  Judge  Pot- 
ter appeared  at  the  bar  of  the  assembh-  chamber,  when  the 
speaker  addressed  him  as  follows : 

Mr.  Piatt  Potter, — You  have  been  summoned  to  the  bar  of  the 
assembly  of  the  state  of  New  Y"ork,  for  a  high  breach  of  its  pvlvi' 
leges,  in  issuing  the  attachment  under  which  the  Hon.  Henry  luiy, 


582  BRItACH   OF  ITiIYILEGE. 

a  member  of  this  house  fi-om  the  first  district  of  Ontario  county, 
Avas  arrested  and  taken  from  his  duties  as  a  member  of  this  house, 
and  conducted  to  Ballston  Spa,  in  the  county  of  Saratoga,  there 
to  testify  before  a  gi-and  jury  of  the  court  of  oyer  and  terminer,  of 
which  court  you  were  the  presiding  justice.  What  have  you  to 
say  in  excuse  for  your  conduct  in  the  premises  ? 

Mr.  Potter  inquired  if  the  presence  of  his  counsel  would  be  per- 
mitted.    [Mr.  W.  A.  Beach.] 

Mr.  Fields  stated  that  the  presence  of  counsel  is  unusual. 

The  speaker  declined  to  accede  to  the  request. 

Judge  Potter :  Then  I  will  speak  for  myself ;  and  proceeded  as 
follows : 

Mr.  Speaker  :  I  appear  in  obedience  to  the  resolution  and  order 
of  this  honorable  body,  to  give  such  explanations  as  I  am  permit- 
ted, in  relation  to  what  is  assumed  to  be  a  high  breach  of  privilege 
in  causing  the  arrest  of  an  honorable  member  of  this  house. 

In  thus  appearing,  sir,  I  do  not  acknowledge  the  power  of  this 
house — I  do  not  acknowledge  the  authority  of  this  house  to  call 
me  to  any  account  whatever ;  and  coming  here  by  courtesy — only 
out  of  resjDect  to  this  house,  I  proceed  to  make  such  statements  as 
I  am  permitted  to  make  by  this  honorable  house,  without  waiving 
the  objection,  which,  l3y  counsel,  I  am  advised  I  might  make,  and 
decline  to  appear  here  at  all  by  any  authority  that  this  house  may 
have  over  me. 

And  while  I  stand  hero,  thus  giving  all  respect  to  this  high  de- 
partment of  the  state  government,  I  also  stand  here  to  protest 
against  the  legal  right — against  the  legal  authority  of  this  body, 
to  call  in  question  my  judicial  acts  performed  within  the  sphere  of 
the  judicial  department  of  this  same  government,  in  which  I  have 
the  honor  to  hold  a  place. 

I  claim,  sir,  that  the  judicial  department  of  this  government  is 
entrusted  with  an  equal  portion  of  the  sovereign  power  of  the 
state  ;  that  it  is  possessed  of  equal  dignity  with  any  other ;  that 
it  is  a  department  whose  powers  are  co-ordinate  and  co-extensive 
with,  and  entirely  independent  of,  the  legislative  powder.  That,  to 
be  sovereign  and  independent,  when  acting  within  its  proper 
sphere,  there  must  exist  no  other  or  higher  tribunal  to  call  them 
to  account  for  their  independent  action.     I  protest,  and  claim,  sir, 


BREACH  OF  rnn'ILEGE.  583 

that  there  is  no  way  known  to  the  constitution  or  huvs  of  this 
state  by  which  a  judge  can  be  called  to  account,  be  tried,  de- 
graded, or  the  dignity  of  the  judicial  office  impaired,  except  by  the 
only  method  known  to  the  constitution,  by  way  of  impeachment 
for  corruption  in  olHce.     Of  this  there  is  no  pretence  here. 

I  am  not  called  here,  sir,  as  an  individual,  to  answer  lor  an  in- 
dividual offence.  No,  sir,  this  cas(!  assumes  vastly  gi-eater  pro- 
portions and  magnitude  than  that.  Sir,  I  come  as  a  justice  of  the 
Supreme  Court  of  New  York  ;  as  one  representing  the  judicial  de- 
partment of  the  state,  to  defend  my  J luUcial  action.  In  speaking 
in  their  defence,  common  propriety  demands  that  I  should  speak 
with  all  respect  to  this  honorable  body  ;  duty  to  my  department 
equally  demands  that  I,  as  their  representative,  should  speak  with 
boldness  of  defence  as  if  that  whole  body  Avere  here  speaking  to 
an  equal.  Sir,  with  all  respect,  I  deny  the  power ;  I  deny  the 
legal,  the  constitutional  power  of  this  house  to  call  my  judicial  acts 
in  question. 

I  protest  in  the  name,  and  as  the  representative,  of  the  judicial 
department,  to  the  exercise  or  to  tlie  attempted  exercise  of  such 
a  power  by  this  house.  I  protest  in  the  name  of  the  sovereign 
people  of  this  state  ;  I  protest  in  behalf  of  the  constitutional  inde- 
pendence of  the  judicial  department,  against  the  power  of  this 
house  to  punish  by  censure  or  otherwise,  the  individual,  for  acts 
performed  while  exercising  the  functions  of  a  magistrate  of  the 
highest  court  of  oiiginal  jurisdiction  of  this  state. 

Sir,  I  should  be  a  traitor  to  the  interests,  to  the  dignity,  to  the 
sacred  character  of  the  judicial  department,  to  its  independence, 
to  the  right  to  protection,  if  by  any  act  of  mine,  or  by  passive 
submission,  I  should  consent  to  the  aggressive  assumption  of  power 
wliich  proposes  to  strike  so  deadly  a  blow  at  their  independence  ; 
nay,  if  I  did  not  with  boldness,  with  fearlessness  of  consequences 
to  myself,  protest,  solemnly,  earnestly  protest,  against  a  proceed- 
ing so  calculated,  in  its  effects,  to  overawe  them  in  the  exercise  of 
their  duties,  and  thus  to  destroy  their  independence. 

Sir,  if  this  measure  shall  be  carried  out  u]ion  the  assumed 
powers  of  this  house,  what  is  left  of  character  or  of  independence 
to  the  judicial  department?  If  one  department  of  this  government 
possess  the  power  to  command  obedience  of  anotlier  of  co-exteu- 


584:  BKEACH   OF  PRIVILEGE. 

sive  and  equal  power  ;  if  the  legislative  can  usurp  the  authority  to 
hold  iu  awe,  or  punish,  the  judicial,  then  indeed  have  we  a  despo- 
potism,  and  not  a  government  of  freedom.  If  for  an  official,  if  for 
a  judicial  act  of  a  Judge,  this  house  possess  the  power  to  punish, 
even  for  mistaken  judgment,  where  is  the  boasted  protection  to 
an  independent  judiciary?  Where  Avill  there  be  found  a  spirit 
craven  enough  to  accept  a  place  on  the  judicial  bench  ? 

Su-,  allow  me  to  say,  that  in  my  opinion,  it  will  be  a  sad  day  for 
this  republic  ;  a  sad  day  for  the  liberties  of  this  people,  when  such 
a  doctrine  shall  be  established. 

"With  what  ofience,  then,  am  I  charged  ?  Not  with  having  acted 
corruptly ;  but  that,  as  a  judge,  acting  officially,  acting  in  the 
discharge  of  a  high  and  solemn  duty  imposed  by  the  constitution 
and  laws  of  this  state,  which  I  have  sworn  to  support  and  obey, 
I  had  the  independence,  nay,  if  you  please,  the  daring  to  pronounce 
the  law,  as  I  understood  it  then,  and  as  I  understand  it  now  ;  yea, 
more,  I  feel  bound  to  say  here,  before  this  high  tribunal,  now,  in 
full  view  of  all  the  terrors  of  its  threatened  power,  with  all  the 
power  which  it  may  deem  in  its  power  to  exert,  that  as  I  sfill 
understand  the  law  of  privilege  in  this  state,  were  I  called  upon 
to-morrow  to  act  again  as  I  acted  in  .this  case,  as  I  feel  responsible 
to  God  only  for  its  conscientious  performance,  I  should  repeat  the 
act  for  which  I  am  now  called  upon  to  explain,  regardless  of  any 
action  this  house  shall  take  in  this  matter. 

My  offence,  then,  is  that  in  so  pronouncing  the  law,  I  have  dif- 
fered in  opinion  with  the  honorable  committee  ;  perhaps  with  the 
whole  house.  A  high  offence,  indeed  !  But,  sir,  I  have  committed 
no  contempt.  No  contempt  has  been  committed.  As  a  judicial 
officer  so  acting,  1  could  commit  no  contempt  for  which  I  could 
be  held  responsible.  It  is  not  the  individual  who  is  before  you, 
whose  acts  you  propose  to  punish  by  censure  or  otherwise,  that 
has  committed  any  act  whatever.  It  is  a  high  court  of  this  state 
that  performed  the  act. ;  yes,  sir,  it  is  a  liigh  court  that  has  com- 
mitted the  sin ;  and  the  theory  of  this  proceeding  is,  that  the 
individual  who  at  the  time  was  clothed  by  the  constitution  and 
laws  with  the  power  to  execute  the  sovereign  will ;  he  who  was 
the  mere  minister  of  justice,  acting  according  to  his  solemn  sworn 
convictions ;  executing  not  his  ov/n,  but  the  peoples  will,  that  is 


JJliJ'AClI    OF   J'UIVILEGE.  585 

to  bo  humiliated,  threatened,  overawed,  for  daring  to  do  his  con- 
stitutional duty. 

Sir,  a  case  hke  this  is  unheard  of.  It  is  an  anomaly  in  this  ;  it 
is  an  anomaly  in  any  and  every  civilized  government  upon  the 
earth.  Yes,  sir,  it  was  reserved  for  this  honorable  house,  in  the 
year  1870,  to  initiate  such  a  proceeding.  It  is  an  anomaly  in  every 
step  of  its  progi'ess.  First,  in  its  progi-ess,  the  judge  was  sul)- 
poenaed  to  appear  before  an  honorable  committee  of  this  house,  to 
give  evidence  of  the  facts  upon  which  one  of  its  honorable  members 
had  been  arrested..  To  this  step  no  i)ossible  objection  could  bo 
urged.  None  was  urged.  He  appeared  in  obedience  to  that  sum- 
mons. Knowing  his  legal  protection,  little  did  he  imagine  that  he 
was  called  there  to  be  made  informer  against  himself  for  an  offence  ; 
to  be  used  as  his  own  accuser. 

A  becoming  respect  to,  and  confidence  in  the  body  before  whom 
he  appeared,  forbid  such  un  idea.  He  was  not  summoned  there 
for  trial.  Had  he  been,  he  Avould  have  put  himself  there,  as  he 
does  hero,  upon  his  defence.  He  relied  upon  a  reciprocal  confi- 
dence, upon  comity,  upon  the  magnanimity  of  an  honorable 
committee  that  no  such  object  was  in  view  as  a  trial.  The  legiti- 
mate duty  of  that  committee^  as  he  supposed,  was,  to  inquire  as  to 
facts,  and  by  wdiat  law  an  honorable  member  had  been  arrested  ; 
whether  there  had  been  a  breach  of  privilege ;  whether  the  law- 
was  sufficiently  protective,  and  if  not  to  recommend  one  that 
should  be.  He  knew  that  he  had  acted  in  the  conscientious  cou- 
A^ctions  of  duty,  and  that  he  was  not  amenable.  What  had  he  to 
fear  at  the  hands  of  honorable  men  ?  He  knew  that  if  he  had  acted 
comiptly  then  only  could  he  be  dealt  with.  He  supposed,  too, 
that  if  any  doubt  existed  as  to  his  rightful  exercise  of  power,  that 
some  committee,  like  that  of  the  judiciar}-,  would  be  selected,  and 
who  would  dare  to  place  their  legal  opinion,  for  which  they  would 
be  willing  to  be  held  responsible  before  the  legal  world,  upon  the 
records  of  the  legislative  department ;  that  before  such  a  committee, 
(not  now  intending  disrespect  to  this,)  an  opportunitv  Avould  be 
given  to  discuss  so  grave  a  question. 

But,  sir,  with  no  avowal  of  such  an  object ;  without  a  trial,  I 
am  charged  by  that  honorable  committee,  that  as  a  judge  of  the 
Supreme  Court,  I  have  committed  a  high  breach  of  priAilege  of 
7i 


58G  BREACH   OF  rPiRTLEGE. 

this  house  ;  that  as  sucli  judge,  I  have  struck  a  blow  at  the  inde- 
pendence of  this  co-ordinate  branch  of  the  government ;  and  the 
theory  of  your  honorable  committee  is,  that  this  house  possess  the 
power  to  punish  by  censure  or  otherwise,  without  a  trial ;  not  the 
body  who  committed  the  act,  but  the  minister  of  that  department 
who  executed  its  power.  This  is  an  assumption  of  the  pre-eminence 
of  power  of  this  house,  an  assumption  of  authority  over  the  judi- 
cial department,  which  has  no  foundation  in  this  government.  It 
is  an  assumption  that  the  legislative  power,  or  that  one  branch  of 
its  body,  is  superior  in  authorit}-  to  the  judicial  department.  Tliis 
is  an  assumption  that  no  lawyer  of  any  standing  dare  assert ;  and 
one  that  this  house  will  not  stultify  its  understanding  by  asserting. 
If  this  proposition  as  to  its  power  is  untrue,  how  can  they  exercise 
the  power  of  punishment  ?  How  then  is  it  proposed  to'  heal  this 
supposed  deadly  wound  upon  their  dignity  of  privilege  ?  They 
cannot  pimish  the  court ;  that  is  physically  impossible.  How  then 
can  they  punish  its  minister?  It  is  proposed,  sir,  to  heal  this 
Avound  by  the  lex  taUonis:  the  law  of  the  right  of  retaliation;  the 
right  of  inflicting  alike  injury  upon  a  co-ordinate  department ;  that 
is,  to  commit  a  breach  of  privilege  in  return  upon  the  judicial  de- 
parttQent,  in  satisfaction  of  the  ofience.  Sir,  I  stand  here  protest- 
ing against  the  right  to  commit  such  a  breach.  I  stand  here 
claiming  the  privilege  also  of  the  judicial  dej^artment.  I  assert 
that  you  have  no  right  to  bring  these  two  departments  into  confhct ; 
that  you  would  thereby  endanger  the  stability,  the  perpetuity,  the 
independence  of  the  government,  whose  trusts  you  have  in  part 
taken  in  charge. 

Believe  not,  sir,  that  I  say  these  things  through  any  fear  of  con- 
sequences personal  to  myself.  I  well  know  that  as  you  cannot 
punish  the  court  with  material  or  physical  punishment ;  that  you 
cannot  punish  its  members  without  a  trial ;  that  you  cannot  try 
its  Judges  but  by  impeachment ;  that  you  cannot  impeach  but  for 
corruption,  and  that  in  the  constitutional  form.  True,  you  can 
resolve,  you  can  send  forth  your  resolve  in  the  language  of  degra- 
dation, and  though  there  may  be  degradation,  it  will  not  degrade 
him  against  whom  it  is  issued.  It  is  not  such  degradation  that  I 
fear ;  if  such  resolution  shall  be  issued,  it  will  fall  harmless  u]3on 
him  against  whom  it  is  issued.     Nay,  sir,  were   I  ambitious,  I 


BREACH   OF   PKIVILEGE.  587 

■would  invite  it.  I  wouki  court  its  favor.  But,  sir,  I  Lave  no  .such 
ambition  ;  no  ambition,  but  that  in  the  sight  of  that  God,  in  whom 
I  trust,  to  do  my  judicial  duty  fearlessly  ;  to  the  best  of  my  ability  ; 
unawed,  uuterritied,  uniuflueuced  by  caprice  or  favor — the  will  of 
assumed  rulers,  or  the  more  fearful  influence  of  passion,  of  popular 
applause,  or  of  pt)pular  excitement  and  prejudice. 

13ut,  before  I  proceed  furtlier  upon  this  view  of  the  case,  I  pro- 
pose, candidly  for  a  moment,  to  look  at  the  law  of  privilege  to 
members  of  the  legislature  of  this  state,  and,  witli  all  intended 
respect  to  the  argument  of  your  lionorable  connnittee,  I  deny,  I 
solemnly  deu}-,  that  the  law  of  privilege  of  the  British  parliament, 
as  claimed  by  them,  is  the  law  of  pri\ilege  of  the  state  of  New  York, 
and  I  shall  show  it  to  be  otherwise.  I  deny  that  the  privilege  of  the 
house  of  congress,  is  the  same  law  of  privilege  as  that  of  the  legisla- 
ture of  the  state  of  Xew  York ;  and  Avhile  I  accord  to  that  committee 
credit  for  much  research  into  the  law  of  privilege  of  Great  Britain, 
I  shall  show  that  they  did  not  search  far  enough  to  find  it ;  and 
it  will  be  seen  that  their  report  is  entirely  deficient  in  the  examin- 
ation of  the  law  of  privilege  of  this  state.  The  law  of  privilege  of 
members  of  congress,  is  not  the  same  law  as  that  of  the  British 
parUament ;  but  is  secured  to  them  in  the  constitution  of  the 
United  States,  wliicli  limits  and  restricts  the  common  law  of  Eng- 
land, as  cited  in  that  report.  The  laws  of  the  several  states, 
differ  from  each  other,  and  differ  fi-om  that  of  congress.  The  law 
of  privilege  of  the  state  of  New  York  is  peculiar  to  itself.  It  is 
not,  as  is  that  of  congi'ess,  in  the  constitution,  but  is  regulated  by 
a  statute.  It  is  so  brief  in  its  provisions,  that  I  shall  be  excused 
for  repeating  it.  It  is  aU  embraced  in  two  Knes,  to  wit :  "Every 
member  of  the  legislature  shall  be  privileged  fi'om  aiTest  on  civil 
process."  No  lawyer  of  any  standing  or  credit  will  deny  the  rule 
of  constiiiction  to  be  given  to  this  language  by  a  maxim  as  old  as 
the  common  law,  which  apphed  to  this  case,  is,  "  the  expression  of 
one  privilege  is  the  exclusion  of  every  other."  Members  of  the 
legislature  of  this  state,  by  this  rule^  are  o»?//  privileged  from  arrest 
on  ciuil  pi'ocess. 

Would  any  honorable  member  of  this  house ;  would  any  fi'ee 
citizen  of  this  government,  like  to  see  the  legislature  of  this  state 
possess  the  uncontrollable  power  of  the  British  parliament,  as  cited 


588  BREACH   OF  I'lilYlLEGE. 

by  yoiu-  committee  ?  AVhy,  sir,  Blackstono  says,  "  that  parliament 
possesses '  sovereign  and  nncontrollable  authority.  The  whole 
sovereign  power  of  the  kingdom  is  vested  in  it — ^legislative  and 
judicial/'  The  English  writers  say,  "That  with  parhament  the 
sovereign  power  is  despotic ;  it  runs  without  limit  and  rises  above 
all  control."  Is  it  the  law  of  privilege  of  such  a  government,  that 
seems  to  have  charmed  your  honorable  committee?  It  is  the 
privilege  of  the  law  of  Great  Britain,  which  your  honorable  com- 
mittee claims  to  be  in  force  in  this  state.  Sir,  with  all  due  respect 
to  that  honorable  committee,  I  deny  it ;  and  shall  show  it  other- 
wise. It  is  the  law  of  privilege  of  the  state  of  New  York  only, 
wliich  this  house  can  assert,  and  which  is  now  before  them  for 
their  consideration. 

I  shall  be  able  to  demonstrate,  that  by  that  law,  no  breach  of 
privilege  has  been  committed.  It  is  only  from  civil  process  that 
there  is  privilege. 

The  honorable  member  has  not  been  arrested  on  ci\il  process. 
It  is  impossible  in  the  nature  of  thiugs  that  he  shou]^l  have  been. 
The  process  in  question  was  issued  out  of  the  court  of  Oyer  and 
Terminer.  That  court  is  a  criminal  court  only.  It  has  no  juris- 
diction in  civil  cases.  It  cannot  issue  civil  processes.  That  court 
possesses  the  power  hke  other  courts,  to  compel  obedience  to  its 
process.  All  the  forms  of  law  were  complied  with.  Disobedience 
to  its  process  was  proved  by  the  proper  forms  of  evidence.  The 
court,  composed  of  three  persons,  not  of  one  individual,  solemnly 
adjudged  that  there  had  been  a  contempt  of  its  authority.  It 
issued  its  process  to  arrest  for  this  contempt.  This,  sir,  is  the 
high  breach  of  privilege  complained  of. 

AVasthis  civil  process?  Without  intending  disrespect  to  any 
member  of  this  body,  I  assert  it  to  be  little  less  than  an  absurdity 
so  to  claim.  The  judiciary  of  this  state  I  apprehend  would  be 
startled  at  this  novel  assertion,  that  this  was  civil  process.  The 
elementary  books  of  authority  which  influence  courts  in  their 
opinions,  say  otherwise.  They  define  "attachment"  to  be  a 
process  in  the  nature  of  a  criminal  proceeding,  issuing  out  of  a 
court  of  record  against  a  person  who  has  committed  some  con- 
tempt of  court ;  enumerating  among  other  things,  "  the  disregarding 
of  its  process,"  or  "  omitting  to  do  anything  that  shows  his  disre- 


BREACH   OF  PEKILEGE.  589 

garcl  of  the  autliority  of  the  court."  JJurriir.s  Dictionary,  titlo 
"  Attaclimciit."  4  Black.  Com.,  284.  4  Stephens  Com.,  19.  Peo- 
ple V.  Nevins,  1  Hill,  154.  Baily,  J.,  in  King  v.  Clement,  4  Barn, 
and  Aid.,  231.     Jac.  Law  Diet.  Attachment. 

So,  too,  in  Hke  authority,  is  found  the  definition  of  criuiiual 
proceedings  as  follows  :  "  Civil  proceedings  are  distinguished  from 
criminal  in  this — the  former  are  for  a  civil  injury,  or  for  a  light 
due  from  one  citizen  to  another ;  the  latter  is  for  a  breach  of  vio- 
lation of  some  public  duty  in  wliich  the  state  or  community,  in  its 
aggregate  capacity,  are  interested."  In  this  state,  criminal  pro- 
ceedings are  cases  in  behalf  of  the  people.  In  the  highest  court 
of  this  state,  in  the  case  of  Spaulding  v.  The  People,  7  Hill,  303., 
the  character  of  this  process  upon  which  the  honorable  member 
was  arrested,  was  expressly  passed  upon  by  the  court.  Chief 
Justice  Nelson,  delivering  the  opinion,  (and  which  case  was  after- 
wards affirmed  by  the  Supreme  Court  of  the  United  States,)  said, 
among  other  things,  "that  criminal  contempts  was  where  one  un- 
lawfully interfered  with  the  process  or  proceedings  in  an  action, 
or  by  the  refusal  of  a  witness  to  attend  or  be  sworn,"  &c.  "  All 
iliese,"  says  the  learned  Judge,  "  are  strictly  cases  of  criminal 
contempts,  which  have  nothing  to  do  with  the  collection  of  debts 
or  tlie  enforcement  of  civil  remedies.''  Enough  perhaps  upon  this 
head  of  civil  jyrocess.  Except  to  say,  that  I  concur  in  the  opinion  of 
the  Court  of  Errors  of  this  state  ;  and  this  learned  committee  must 
excuse  me,  when  I  am  compelled  to  say,  that,  as  a  Judge,  I  shall 
in  future  act  upon  that  opinion,  in  preference  to  theirs,  at  page  9, 
of  their  report,  in  which  they  hold  the  contrary  rule. 

They  must  further  excuse  me  from  differing  with  them  in  the 
opinion  that  a  member  of  the  legislature  is  privileged  fi'om  the 
service  of  a  summons  or  subpoena  to  give  evidence  before  a  grand 
jury,  or  that  the  service  of  such  subpoena  or  summons  is  void.  In 
the  recent  case  of  Wooley  and  others  against  Benjamin  F.  Butler, 
decided  in  the  state  of  Maryland,  the  defendant  was  a  member  of 
congress  ;  in  passing  through  that  state,  he  was  sen'cd  with  process, 
commencing  a  civil  action  against  him.  He  applied  to  the  court 
to  set  it  aside  on  the  gi'ound  of  privilege.  The  court  held  the 
sen'ice  of  process,  which  did  not  arrest  the  defendant,  to  be  good, 
and  not  void.     Either  that  court  was  in  en-or,  or  this  honorable 


590  BREACH  OF  PERTLEGE. 

committee  must  be  ;  and,  if  between  such  conilictiug  opinions,  a 
Judge  should  happen  to  be  mistaken  in  his  selection  of  authority, 
is  he  to  be  punished  for  contempt  ?  But,  sir,  our  statute  has  de- 
lined  what  are  criminal  and  what  are  cicil  proceedings. 

By  the  "  Code  of  Procedure,"  criminal  and  civil  actions  are 
delined  as  follows : 

§  2.  An  action  is  an  ordinary  proceeding  in  a  court  of  justice  by 
which  a  party  prosecutes  another  party  for  the  enforcement  or 
protection  of  a  right,  the  redress  of  a  wrong,  or  the  ivmisliment  of 
a  public  offence. 

§  3.  Every  other  remedy  is  a  special  proceeding. 

§  4.  Actions  are  of  two  kinds. 

1.  Civil. 

2.  Criminal. 

§  5.  A  criminal  action  is  prosecuted  by  the  people  of  the  state 
as  a  party  against  a  party  charged  with  a  public  offence  for  the 
punishment  thereof. 

§  6.  Eveiy  other  is  a  civil  action. 

The  proceeding  pending  in  the  Court  of  Oyer  and  Terminer* 
before  the  gi'and  jury,  was  a  "criminal  action  prosecuted  by  the 
people  of  the  state  as  a  party  against  a  pai-ty  charged  with  a  public 
offence  for  the  punishment  thereof." 

The  same  definition  in  substance  is  given  by  Burrill  of  a  civil 
action.  He  says,  "  it  is  an  action  brought  to  recover  some  civil 
right,  or  to  obtain  redress  for  some  wrong,  oiot  being  a  crime  or 
misdemeanor.  In  this  latter  respect  it  is  distinguished  from  a 
criminal  action  or  prosecution." — Bun-ill's  Law  Die,  Civil  Action. 

And  the  same  author  defines  "Civil  Eight,"  to  be  "the  right  of 
a  citizen ;  the  right  of  an  individual  as  a  citizen,  to  sue  for  a  right 
due  from  one  citizen  to  another,  the  privation  of  which  is  a  civil 
injury,  for  which  redress  maybe  sought  in  a  civil  action.'' — Id.  Tit^ 
Civil  Eights. 

And  the  word  "  civil"  is  defined  to  be  something  "  belonging  or 
relating  to,  or  affecting  a  person  as  a  citizen,  relating  to  or  affecting 
the  rights  and  duties  of  a  citizen,  particularly  as  between  one  citizen 
and  another."— Id.  Tit.  "  Civil." 

From  all  these  authorities  it  conclusively  appears  that  "civil 
jr/ocess'  must  necesanYily,  cx-vi-termini ,  include  only  such  process, 


BREACH   OF   riilVILEGE.  591 

as  Olio  citdzeu  in  by  law  entitled  to  luive  issued  by  the  eourLs  to 
enforce  or  aid  iai  eiilorcing  some  civil  right  in  his  favor  against 
another  citizen  ov  party ;  and  that  criminal  process,  on  the  other 
hand,  is  such  as  issues  on  behalf  of  the  people  as  a  party,  to  enforce 
(a'  aid  in  enforcing  the  criminal  law  against  an  offender  and  for  the 
punishment  of  a  public  offence.  Nor  so  far  as  the  definition  of  the 
Uirm  "  cicil  proccs^s'  is  concerned,  are  we  without  authority  from 
our  highest  court.  In  the  People  v.  Campbell  (40  N.  Y.  137)  the 
Coui't  of  Appeals,  Mason,  Justice,  giving  the  opinion  said,  "  It  has 
never  been  questioned  but  such  a  process  as  this,  to  enforce  a  civil 
remedy,  by  the  collection  of  a  specitied  sum  of  money  is  to  be  re- 
garded as  'cifil  2)>'ocess.' " 

But,  sir,  it  is  still  alleged  that  the  Court  of  Oyer  and  Terminer, 
whose  jurisdiction  is  cxclu.sivchj  criminai,  and  Avhicli  has  no  civU 
jurisdiction  "whatever,  can  yet  issue  a  ciuil  process,  and  that  the 
the  subpoena  served  on  Mr.  Kay  to  appear  before  the  grand  jury, 
was  such  "  civil  i^rocessy  If  this  was  true,  still  the  statute  does 
not  '^privilege'"  him  from  such  service.  A  member  of  assembly  is 
(iiii/j  exempted  from  "  arrcsC  on  ^^ civil  process,"  and  not  from  its 
•'.  //-/'f,  v.licre  it  may  be  served  without  an  arrest  being  made. 
Not  being  privileged  from  the  service  of  the  subpoena  therefore, 
tiu'ii  the  statute  imposed  tlie  duty  on  liiiii  to  obey  its  mandate. 

13ut  it  is  further  absurdly  said,  that  the  subpoena  being  civil 
process,  nothing  can  be  built  upon  it,  or  can  grow  out  of  it,  that 
makes  the  party  subpoenaed  liable  to  aiTest.  Sir,  no  lawyer  will 
make  such  an  argument.  By  a  pronsion  of  the  Eevised  Statutes, 
vol.  2,  page  278,  §  10,  it  is  provided  that  "  Every  Court  of  Eecord 
shall  have  power  to  punish,  as  for  a  criminal  contempt,  persons 
guQty  of  the  following  acts."  Among  the  enumerated  acts  is,  "  that 
of  willful  disobedience  of  any  process  issued  by  it."  And,  sir, 
must  not  the  court  issue  criminal  process  in  order  to  punish  this 
disobedience?  This,  however, is  said  to  be  a  forced  construction ; 
that  it  is  not,  after  all,  criminal  process ;  that  under  such  pretence 
the  (.lignitij  of  this  honorable  body  would  be  assailed,  and  its  mem- 
bers withdi-awn  from  the  state  interests;  it  is  claimed  that  the 
tiiie  meaning  of  tliis  statute  of  privilege  is,  that  it  must  be  a  pro- 
cess that  Avoiild  aiTest  the  member  for  a  criminal  charge  against 
Imnself.     Sii",  a  refusal  to  obey  the  process  of  thccoiu't  is  criminal. 


592  BREACH  OF  PRIVILEGE. 

It  is  made  so  by  statute,  2  Eev.  Stat.  G92.  It  is  an  indictable  of- 
fence. If,  instead  of  the  criminal  process  by  attacliment,  the 
honorable  member  had  been  indicted  by  the  grand  jury  for  his 
disobedience  ;  would  the  bench  warrant  issued  by  the  district 
attorney  be  civil  process?  And  would  not  a  criminal  Icnch  icar- 
ra»f,  equally  with  a  criminal  attachment,  have  taken  the  honorable 
member  from  this  house  ?  The  question  of  policy  has  nothing  to 
do  wdth  the  law.  Sir,  the  idea  of  arraigning  a  Judge  before  this 
honorable  house,  for  enforcing  the  law  made  by  your  predecessors, 
which  you,  as  well  as  he,  are  bound  to  obey,  is  a  new  idea  in  the 
workings  of  our  system  of  government  never  attempted  till  now. 

But,  Mr.  Speaker,  I  have  spent  too  much  time  in  showing  that 
I  have  acted  right.  So  far  as  your  power  over  me,  or  over  the 
department  of  government  in  which  I  hold  place  is  concerned,  it 
is  immaterial  whether  I  acted  right  or  wrong.  Your  honorable 
body  have  no  more  power  over  me  in  the  one  case  than  in  the 
other  ;  that  is,  no  power  at  all. 

Sir,  your  honorable  committee,  by  their  report,  in  which  they 
have  regarded  me  as  an  offender,  but  with  which  they  did  not  favor 
me  with  a  copy  (but  for  the  favor  of  which  I  am  indebted  to  the 
honorable  representative  of  my  own  county,)  have  stated  supposed 
cases  of  almost  infinite  mischief,  if  the  privilege  of  members  is  not 
made  as  absolute  as  they  claim.  I  am  not  here  to  discuss  such  a 
question.  I,  too,  can  suppose  cases  of  monstrous  public  injustice, 
if  their  claimed  law  of  privilege  was  the  law  of  the  land.  If  a  case 
of  murder  or  felony  is  committed  in  the  presence  or  within  the 
knowledge  of  a  member  of  the  legislature  ;  and  if,  without  his  tes- 
timony before  a  grand  jury  or  a  court,  the  felon  would  escape 
pubhc  justice,  should  there  be  no  power  in  this  government  to  com- 
pel his  attendance  to  testify  ?  Is  the  dignity  of  a  member  of  the 
legislature  paramount  to  the  public  security  ?  Do  not  felons  and 
outlaws  now  sufficiently  abound  in  community  ?  Shall  new  devices 
be  presented  beyond  the  present  intricacies  of  law,  by  which  their 
escape  from  punishment  shall  be  secured  ?  But,  sir,  my  duty  was 
to  inquire  what  is  the  law  ;  not  what  is  pohcy. 

It  is  my  duty  to  say,  however,  in  regard  to  the  particular  case 
before  us,  in  justice  to  the  case  of  the  honorable  member  whose 
arrest  is  complained  of  here,  I  neither  knew  his  name,  the  name 


BREACH   OF  I'KIYILEGE.  593 

of  the  accused,  nor  the  crime  ■with  which  he  was  charged.  ^Vll  I 
now  know  about  it  is,  upon  the  statement  of  the  pubUc  prosecutor, 
th;it  upon  the  testimony  alone  of  that  honorable  member  before 
llie  grand  jury,  the  accused  was  indicted  and  is  now  held  for  trial. 
That  the  accused  had  been  perpetrating  enormous  frauds  upon 
vliat  connnunity,  claiming  that  he  Avas  acting  as  the  agent  of  that 
honorable  member.  It  appears  to  me,  that  it  should  have  been 
the  pleasure  of  that  honorable  member  to  do  cheerfully,  what  he 
did  of  compulsion  ;  to  give  the  lie  to  the  foul  charge,  and  bring  the 
culprit,  who  was  assailing  his  fame,  to  justice.  It  is  justice  to  him 
for  me  to  say,  that  I  do  not  think  his  refusal  to  appear  and  testify 
was  any  indisposition  to  have  crime  punished ;  but  based  soely 
on  a  mistaken  opinion  of  his  privilege  as  a  member. 

I  do  not  further  propose  to  discuss  the  question  of  policy  presented 
in  the  report  of  y om*  honorable  body ;  nor  would  it  become  a  judge 
to  discuss  with  that  committee  the  policy  of  the  law.  Judges, 
when  acting  as  such,  must  decide  what  the  law  is ;  not  what  it 
should  be,  nor  what  policy  dictates.  If  the  law  is  wrong,  it  is  the 
province  of  the  legislature,  not  of  the  Judge,  to  alter  it.  If  the 
law  is  obscure  or  doubtful,  it  is  equally  the  duty  of  the  legislature 
to  declare  it  and  make  it  plain.  If  its  obscurity  or  uncertainty  is 
such  as  to  make  the  judiciary  doubt,  still  ihey  must  act  upon  their 
best  and  most  conscientious  convictions  ;  and  if  they  mistake  in 
this — if,  in  the  view  taken  by  this  honorable  house,  which  is  but 
another,  and  only  an  equal  department  of  the  government — an 
eiTor  has  been  committed,  is  the  latter  clothed  with  power  to  punish 
for  a  mistake  of  judgment  ?  Is  this  the  independance  of  the  judi- 
cial department  of  the  govenunent  ?  Even  if  the  decision  of  the 
judge  happens  to  be  upon  the  question  of  privilege,  must  he  not 
still  decide  upon  that  question  also,  A\lien  it  comes  before  him  ? 
Sir,  no  civilized  government  on  earth,  and,  above  all,  no  free  gov- 
enunent, ever  placed  their  judiciary  in  circumstances  so  hazardous, 
so  despotic,  as  this  theoiy  proposes ;  subject  not  only  to  accusation, 
but  subject  to  have  their  accusors  the  judges,  who  shall  try  them 
for  the  oftence  of  a  mistaken  opinion ;  and  those  judges,  too,  a 
body  easily  moved  to  anger  by  an3'tliing  that  looks  like  an  indig- 
nity offered  to  their  own  order. 

Mr.  Speaker,  I  crave  the  privilege  of  a  single  word  upon  the 

75 


59i  BEEACH  or  rRITILEGE. 

acciisatiou  made  iii  the  report  by  your  honorable  committee.  It 
is  not  of  material  facts  omitted  in  their  report,  which  would,  if 
stated,  give  a  more  favorable  view  of  the  facts  of  the  case,  that  I 
complain,  although  I  might  complain  of  that,  but  for  the  great 
injustice  (unintentional,  no  doubt,)  of  the  statement  in  one  short 
paragraph  of  the  report,  not  of  the  evidence,  but  of  the  conclusions 
of  the  committee  ;  as  follows  :  They  say  :' 

"  His  Honor,  Judge  Potter,  before  the  committee,  in  the  first 
place  attempted  to  extenuate  or  excuse  his  conduct  by  a  statement 
that  the  attachment  Avas  issued  inadvertently,  and  that  his  atten- 
tion was  not  called  to  the  fact  that  Mr.  Eay  was  a  member  of  the 
assembly,  although 'it  subsequently  appeared  by  the  statements  of 
Judge  Potter,  of  the  district  attorney,  and  of  Mr.  Waldron,  the 
surrogate  of  Saratoga  county,  that  prior  to  the  issuing  of  the  at- 
tachment, the  fact  that  Mr.  Ptay  was  a  member  of  the  assembly, 
was  brought  to  the  knowledge  of  the  judge.  It  will  thus  appear 
that  the  subpoena  was  issued  to  Mr.  Haj,  and  the  attachment  issued 
upon  return  of  the  service  of  said  subprxaia  notwithstanding  such 
knowledge." 

This  statement,  in  its  effect,  is  not  only  calculated  to  create  pre- 
judice against  me  before  this  house,  by  whom  it  is  claimed  I  am 
to  be  tried;  but  to  degrade  me  in  public  estimation.  I  did  not 
atterii'pt  to  extenuate  or  excuse  my  conduct  ;  hut  on  the  contrary,  jus- 
tified the  act  then  as  I  do  noio  ;  nor  was  the  act  done  hy  inadvertance. 
That  honorable  committee  will  now  do  me  the  justice  to  remember, 
that  though  I  did  state  the  fact,  that  at  the  time  I  signed  the  at- 
tachment, I  did  not  know  that  Mr.  Eay,  against  whom  it  was 
moved,  was  a  member  of  assembly ;  that  I  signed  many  on  that 
da}',  and  this  among  the  number ;  that  it  was  not  stated  at  the 
time  in  my  hearing,  that  Mr.  Eay  was  a  meml)er  of  the  legislature. 
This  I  stated  as  fact ;  but  I  did  declare  to  that  committee  that  I 
had  previously  given  the  public  prosecutor,  and  also  to  the  surro- 
gate, whom  ho  sent,  the  opinion  that  a  member  was  not  privileged  ; 
and  I  also  declared  to  that  committee,  that  had  I  known  at  the 
time  that  Mr.  Eay  was  a  member,  I  should  have  deemed  it  my 
duty,  to  have  issued  the  attachment  all  the  same.  I  declared  it 
then  ;  I  declare  it  now  to  this  house,  and  to  the  world.  Such  was, 
indeed,  ray  o^^inion.     I  stated  the  fact  that  I  did  not  know  of  his 


BREACH  OF  rRIMLEGE.  595 

being  a  representative  at  the  time  the  process  was  issued.  I 
stated  this  as  (t  fact,  because  it  v.as  true  ;  and  because  the  honor- 
able chairman  called  upon  nic  lirst  to  state  the  facts.  But,  sir,  I 
deny  that  I  claimed  to  l)e  excused,  or  attempted  to  extenuate  my 
conduct,  for  that  reason,  further  than  the  fact  itself  should  have 
that  effect.  Sir,  the  conclusion  that  I  attempted  to  excuse  or  ex- 
tenuate, is  inconsistent  Avith  avowals  before  that  committee,  that 
I  previously  advised  the  public  prosecutor  of  my  opinion  of  the 
law,  on  being  asked ;  it  is  inconsistent  with  my  avowal  that  had 
I  known  the  fact  of  membership  at  the  time,  with  my  opinions  of 
duty,  I  should  have  issued  it  all  the  same.  The  honorable  mem- 
ber from  Oswego  will  remember  that  he  replied  to  me,  that,  with 
my  opinion  of  the  law,  he  did  not  see  how  I  could  do  otherwise. 
In  this,  sir,  that  honorable  committee  (unintentionally,  no  doubt,) 
has  done  me  gi-eat  mjustice.  I  thrust  back  such  a  charge  witli 
indignation  and  contempt,  as  being  against  all  my  convictions.  I 
stand  here  to  defend  myself  upon  the  broad  gi'ound  of  duty  con- 
scientiously performed,  admitting  that  I  had  given  the  opinion 
stated,  but  still  repeating  the  fact  that  when  I  signed  the  process, 
T  did  not  know  the  name  of  Henry  Ray  was  that  of  a  member. 

Mr.  Speaker,  the  fear  of  being  tedious,  compels  me  to  omit  the 
discussion  of  many  points  vital  to  the  subject  now  pending  before 
this  honorable  body ;  more  vital,  perhaps,  than  a  mere  superficial 
view  would  suggest.  A  conflict  between  two  equal  departments 
of  the  same  government,  possessing  co-extensive  powers,  each 
being  sovereign  within  its  own  sphere,  is  fraught  with  dangers  too 
serious  for  contemplation — too  serious  to  be  disposed  of  under  an 
an  excitement  of  the  moment  by  the  complaining  party,  who  are 
to  sit  also  in  judgment  upon  their  own  supposed  grievances.  For 
one  department,  by  their  action,  to  attempt  thus  to  reduce  another 
to  a  statr  of  servile  obedience,  or  to  destroy  their  independence ; 
to  bring  the  judiciary  into  a  state  of  servile  dependence  upon  the 
legislative  will ;  would  leave  the  former  at  the  mercy  of  the  latter, 
and  the  institution  of  an  independent  judiciarj',  would  perish  by 
its  own  imbecility,  or  want  of  power. 

Permit  me  to  say,  Mr.  Speaker,  v.ith  all  due  courtesy,  in  all 
kinthiess  of  feeling,  it  is  my  deliberate  conviction,  that  your  honor- 
able committee,  unintentionally,  and  without  the  reflection  that 


596  EEEACH  OF  rEBTLEGE. 

ilicir  resolutions  were  to  involve  the  consideration  of  sucli  a  fear- 
ful precedent,  would  now,  in  view  of  its  solemn  importance,  prefer 
eitlier  to  withdraw  them  for  further  considerotion, — refer  them  to 
the  judiciary  committee,  or  to  the  attorney  general  of  the  state, 
for  a  hgal,  a  rcsjMusihle  opinion  upon  the  great  questions  of  the 
conflict  of  power  which  I  have  discussed,  which  are  here  for  action 
under  a  state  of  excitement  by  those  who  are  to  act  as  judges  ;  and 
which  questions,  that  committee  have  not  at  all  considered. 

Thus  far,  Mr.  Speaker,  I  have  argued  this  solemn  question  upon 
my  individual  views  ;  perhaps  the  argument  would  carry  more  pro- 
found respect,  should  I  cite  to  its  support  the  opinions  of  some  of 
the  sages  of  the  law,  who,  with  prophetic  vision,  did  consider,  and 
who  have  given  opinions  upon  this  very  case. 

I  have  thus  far  intended  to  utter  no  word  of  disresjoect  to  this 
honorable  body,  and  I  shall  hope  to  receive  from  them  in  return, 
that  respect  to  my  department,  which  the  theory  of  our  government 
has  established  as  its  right.  In  this  defence,  I  intend  to  utter  no 
language  of  my  own,  equal  in  its  severity  to  that  of  the  profound- 
est  expounders  of  the  rights  of  the  judiciary,  under  our  constitu- 
tional system. 

Mr.  Justice  Story,  that  distinguished  jurist  and  expounder  of 
the  constitution,  whom  all  so  much  respect,  said,  "  Every  govern- 
ment must,  in  its  essence,  be  unsafe  and  unfit  for  a  free  people, 
where  such  a  department  as  the  judiciary  does  not  exist  with  powers 
co-extensive  with  those  of  the  legislative  department.  Where  there 
is  no  judicial  department  to  interpret,  pronounce  and  execute  the 
law,  to  decide  controversies,  and  to  enforce  rights,  the  government 
nuist  either  perish  by  its  own  imbecility,  or  the  other  departments 
of  government  must  usvirp  powers,  for  the  purpose  of  commanding 
obedience  to  the  destruction  of  liberty.  The  Avill  of  those  who 
govern,  will  become  under  such  circumstances,  absolute  and  des- 
potic ;  and  it  is  wholly  immaterial  whether  power  is  vested  in  a 
single  tyrant,  or  in  an  assembly  of  tyrants^  He  cites  the  remarks 
of  Montesquieu  with  approbation,  "  that  it  is  found  in  human  ex- 
perience, that  there  is  no  liberty,  if  the  judiciary  power  be  not 
separated  from  the  legislative  and  executive  ;"  and  he  adds  "  that 
it  is  no  less  true,  that  personal  security  and  private  property  rest 
entirely  upon  the  wisdom,  the  stability,  and  the  integrity  of  the 


BREACH  OF  rRIYILEGE.  507 

courts  ol  justice."  "  That  governinent  c:ui  be  truly  said  to  be  despo- 
tic and  intolerable,  and  Avill  be  rciidcii'd  nioic  oppressive  and  more 
mischievous,  Avhen  the  actual  administration  of  justice  is  depend- 
ent upon  caprice  or  favor  upon  the  will  of  rulers,  or  tlie  influence 
of  popularity."  IVhen  power  becomes  ru/hl,  it  is  of  little  consequence 
whether  decioions  rest  upon  corruption  or  v,(  akness,  upon  tlio 
accident  of  chance,  or  upon  deliberates  Avrong. 

In  every  well  organized  government,  therefore,  with  reference 
to  the  security  liotli  of  public  rights  and  private  rights,  it  is  indis- 
pensable that  there  should  be  a  judicial  department  to  ascertain 
and  decide  I'v^htH,  to  jiKiii.sh  criiiics,  to  administer  justice,  and  to 
protect  the  innocent  from  injury  and  usurpation. 

But,  perhaps,  this  honorable  body  would  better  like  an  opinion 
still  nearer  home.  That  distinguished  jurist,  whose  name  every 
citizen  of  New  York  repeats  with  veneration,  Chancellor  Kent, 
said  :  "  In  monarchial  governments  the  independence  of  the  judi- 
ciary is  essential  to  guard  the  rights  of  the  subject  from  injustice 
of  the  crown  ;  but  in  republics,  it  is  equally  salutary  in  protecting 
the  constitution  and  laws  from  the  encroachments  and  the  tyranny 
of  faction.  Laws,  however  wholesome  or  necessar}',  are  frequently 
the  object  of  temporary  aversion,  and  sometimes  of  popular  resis- 
tance. It  is  requisite  that  courts  of  justice  should  be  able  at  all 
times  to  present  a  determined  countenance  against  all  licentious 
acts,  and  to  deal  iinpartiaJhj  and  irulij  according  to  Jaw,  between 
suitors  of  every  description  or  whether  the  cause,  the  question,  or 
the  party  be  popular  or  unpopular.  To  give  the  courage  and  the 
lirmness  to  do  it,  the  judges  ought  to  be  confident  of  the  security 
of  their  station.  Nor  is  an  independent  judiciary  less  useful,  as  a 
check  uyonthe  legislative  poicer,  which  is  sometimes  disposed//-o?/i 
the  force  of  pai-hj,  or  the  temptations  of  interest,  to  make  a  sacri- 
fice of  constitutional  rights." 

But  Judge  Story,  was  so  imbued  Avith  tlie  fear  of  legislative  en- 
croachments upon  the  judicial,  that  in  another  place  he  says, 
"  that  there  is  a  great  absurdity  in  subjecting  the  decisions  of  men, 
selected  tor  the  knowledge  of  the  laws,  acquired  by  long  and  labo- 
rious study,  to  the  revision  and  control  of  men,  who  for  want  of 
the  same  advantage,  cannot  but  bo  deficient  in  that  knowledge. 
The  members  of  the  legislature  tcill  rarely  he  chosen  with  a  view  to 


598  BEEACH  OF  rHKILEGE. 

iliose  qualifications  ichich'fit  men  for  {he  sfations  of  judges,  and  on 
this  account  t'icre  will  he  great  reason  to  apprehend  all  the  ill  conse- 
(juences  of  defective  information;  so  on  account  of  the  natural  pro- 
pensity of  sucli  bodies  to  party  divisions,  there  will  be  no  less 
reason  to  fear  that  the  pestilential  breath  of  faction,  maij  poison 
the  fountains  of  justice."  "These  considerations,"  he  says,  "  teach 
us  to  applaud  the  wisdom  of  those  states  who  have  committed  the 
judicial  power,  not  to  a  part  of  the  legislature,  hut  to  distinct  and 
independent  hodies  of  men.'' 

This  may,  perhaps,  suffice  upon  this  point.  But  I  approach 
another  point,  which  is,  to  ask  what  is  the  duty  of  a  judge,  even 
if  the  question  of  irrivilege  is  before  him  for  decision  ?  Upon  this 
question  I  demand  such  an  unprejudiced,  patriotic,  sensible  re- 
sponse, that  this  honorable  body  will  dare  to  stand  upon  it  before 
an  impartial  constituency,  and  before  the  inteUigence  of  the  world. 
This  is,  perhaps,  one  of  the  most  important  points  in  the  case. 
Perhaps  the  opinion  of  Chief  Justice  Marshall  might  not  be  inap- 
propriate to  cite  on  this  ciuestion.  Surely  no  intelligent  lawyer, 
no  patriotic  legislator,  would  hesitate  to  look  up  to  such  a  source, 
for  advice. 

In  looking  back  upon  my  conduct  as  a  judge  in  this  matter,  it  is 
a  source  of  sincere  pride,  that  I  may  call  him,  this  profoundest  of 
American  jurists,  and  noble  patriot,  to  my  aid.  In  Cohen  v.  Vir- 
ginia, reported  in  4  Wheaton,  404,  that  illustrious  jurist  said: 
"  The  judiciary  cannot,  as  the  legislature  may,  avoid  a  measure 
because  it  approaches  to  the  confines  of  the  constitution.  We 
cannot  pass  by  a  question  because  it  is  doubtful.  With  whatever 
doubt,  with  whatever  difficulties,  a  case  may  be  attended,  ice  must 
decide  it  if  it  he  hrougld  hefore  us.  We  have  no  more  right  to  de- 
chne  the  exercise  of  deciding,  than  we  have  to  usurp  a  power  that 
is  not  given.  The  one  or  the  other  would  be  treason  to  the  con- 
stitution. Questions  may  occur  which  we  would  gladly  avoid,  but 
we  cannot  avoid  them.  All  we  can  do  is  to  exercise  our  best 
judgment,  onrf  conscientioashj  to  perform  our  dutij.'' 

In  another  case  this  great  judge  said,  "  The  legislative,  executive 
and  judicial  powers  of  every  well  constructed  government  (9 
Wheat.,  818),  are  co-extensive  with  each  other."  If  this  is  sound, 
where  is  the  power  of  the  one  to  call  the  other  to  account  ?     In 


BREACH  OF  rRITILEGE.  599 

still  another  case,  (1  Peters,  8U),  Justice  Juhnson  said,  "lu  cou- 
tlicts  of  power  aud  opinion,  inseparable  from  our  veiy  peculiar 
relations,  cases  may  occur  in  Avliich  the  maintenance  of  principle 
and  the  administration  of  justice  may  require  difTerent  courses ; 
aud  when  such  cases  do  come,  our  courts  mufif  do  tJieir  ihdij." 

Mr.  Speaker,  I  do  not  stand  licrc  to  deny  the  power  and  author- 
ity of  this  house  U)  punish,  as  for  contempt,  one  v»'ho  commits  an 
act  amountmg  to  a  breach  of  privilege  of  one  of  ics  members ;  but 
I  stand  here  denying  that  as  an  individual  I  hf.ve  committed  any 
such  act,  or  intended  to  commit  any.  The  act  was  that  of  court, 
of  which  I  was  but  one  of  its  ministers,  and  that  as  such  minister, 
I  boldly  assert,  that  J  am  protected  by  the  sanctity  of  the  posi- 
tion— by  the  fact  that  it  was  judicial  action  ;  that  my  decision  was 
one  in  which  duty  called  upon  me  to  act,  and  I  was  bound  to  ren- 
der such  a  judgment  in  the  matter  as  a  conscientious  conviction 
of  duty  demanded.  It  is  human  to  err.  If  I  have  mistaken  the 
law,  it  is  such  an  eiTor  as  every  other  judge  who  has  ever  sat  upon 
a  bench  has  committed  ;  and  this  is  the  first  instance  in  the  history 
of  American  jurisprudence  in  which  a  judge  has  been  arraigned 
for  having  mistaken  the  law.  Yes,  sir,  and  I  may  predict,  it  ic'ill 
l>c  the  last. 

But,  sir,  have  I  even  made  a  mistake?  No  court  has  ever  ad- 
judged it  to  be  such.  I  trust  none  ever  will.  Suppose  that  in  the 
opinion  of  your  honorable  connnittec  it  is  a  mistake  ;  yet  my  con- 
victions are  otherwise  ;  and  since  the  passage  of  your  resolutions 
I  have  the  volimtarily  offered  opinions  of  distinguished  jurists  and 
lawyers,  more  in  number  than  compose  that  honorable  committee, 
who  assure  me  I  am  right.  The  question,  then,  still  remains  un- 
decided, wliich  is  right,  with  no  high  judicial  court  to  pass  upon 
it.  Suppose  I  am  right,  after  all ;  and  this  honorable  house  shall 
decide  that  I  am  wrong?  It  will  not,  therefore,  be  wrong.  No, 
sir.  Nor  can  any  resolve  that  you  shall  pass  make  it  wrong. 
Your  resolve  wiU  establish  no  law ;  and  no  independent  judge  will 
ever  pay  it  the  least  regard,  if  he  deems  it  wrong.  My  opinion 
here,  may  bo  disregarded.  I  cannot  vote  here  on  the  question,  or 
if  I  could,  for  aught  I  know,  one  hundred  and  twenty-eight,  or  a 
majority  of  that  number,  men,  perhaps,  my  superiors  in  legal 
knowledge,  can  outvote  me.     I  have  said  this  was  an  anomalous 


GOO  BEEACH   OF  PEIYILEGE. 

proceeding.  It  is  so.  My  accusers,  wlio  have  ali'eady  adjudged 
that  I  have  committed  an  indignity  upon  their  high  privileges,  are 
to  be  my  judges.  Under  such  circumstances,  I  have  been  told, 
there  is  no  hope  of  the  act  being  justified.  It  may  be  so.  It 
would  be  so,  it  is  true,  if  only  the  party,  feeling  and  acting  in  the 
spirit  of  woimded  dignity  is  to  control — feeling  that  the  exercise  of 
their  power  is  beyond  control  of  any  other  power  ;  and  knowing 
that  there  is  no  power  of  appeal.  But,  sir,  if  you  shall  believe  I 
am  conscientious,  would  it  not  be  a  higher  magnanimity — would  it 
not  be  a  better  spirit  of  patriotism  ;  nay,  would  it  not  be  elevating, 
to  divest  the  case  of  feeling  and  prejudice,  and  to  look  upon  the 
case  as  a  high  court  of  law,  uninfluenced  by  ^personal  considera- 
tions, would  look  upon  it  ?  Sir,  this  spirit  of  magnanimity  gives 
me  hope,  even  against  the  spirit  of  supposed  wounded  dignity. 

I  have  already  said  there  are  high  governmental  reasons  why 
the  precedent  now  to  be  established  should  be  a  good  one  ;  that 
if  the  law  is  in  doubt,  3'ou  have  the  power  to  remove  that  doubt 
by  legislation.  The  courts  have  no  power  to  do  so,  because  it  has 
not  been  before  them.  If  the  tlieor}'  of  your  honorable  committee 
is  wrong,  conscientious  judges  who  differ  from  them,  will  repeat 
the  error,  regardless  of  your  action.  Thus  then  they  will  stand, 
with  the  terror  of  legislative  precedent  suspended  over  them  upon 
the  one  side,  but  with  a  more  awful  terror,  that  of  Almighty  ven- 
geance, if  they  violate  their  consciences,  upon  the  other.  Call 
you,  sir,  such  a  position  as  this,  tliat  of  an  independent  judiciary  ? 
Sir,  with  all  respect,  this  would  be  solemn  mockery. 

One  word  more,  Mr.  Speaker.  Your  committee  inform  you  that 
they  have  based  their  resolutions  upon  parliamentary  law,  and 
have  given  you  its  antiquity  and  its  evidence  of  wisdom.  They 
have  assumed  that  this  law  of  privilege  is  uniform.  I  have  dem- 
onstrated by  the  statutes  and  constitutions  that  it  is  not,  and  that 
their  conclusions  in  this  particular  were  in  error.  I  have  shown 
that  the  national  legislature  have  their  privileges  secured  by  the 
national  constitution — that  some  of  the  independent  states  have 
their  law  of  privilege  secured  by  constitutions,  and  some  by 
statutes ;  that  the  law  of  privilege  of  this  state  is  ciualified,  and 
limited  by  the  statute,  and  differs  from  that  of  the  nation,  of  other 
states,  and  of  Great  Britain.     If  this  honorable  committee,  as  I 


BREACH   OF  rillYILEGE.  601 

insist,  iiave  been  led  into  iiiiintcntional  error  iu  this  ;  if  tliey  aro 
equally  in  error  as  io  the  law  of  privilege  in  Great  Britain,  may 
not  the  resolutions  based  upon  such  opinions  be  also  eiTor?  Can 
you  rely  upon  such  a  mistaken  view  of  the  law  as  a  safe  basis  of 
action? 

Sir,  I  have  read  the  cases  refeiTcd  to  in  that  report  upon  tlie 
Enghsli  law  of  privilege,  and  what  will  be  found  as  most  remark- 
able, is  the  fact,  that  not  one  of  those  cases  was  detennmed  within 
the  last  centmy,  nor  since  the  year  1700.  If  that  learned  commit- 
tee had  extended  their  research  to  that  year,  which  was  the  thir- 
teenth year  of  the  reign  of  William  III,  they  would  have  foimd  an 
English  statute  Jiiiut'uvj  the  privileges  of  members  of  parliament, 
which  is  entitled :  "  An  act  for  preventing  any  inconveniences  that 
may  happen  by  privilege  of  parliament."  In  that  act,  sir,  the 
privilege  was  so  limited  that  members  of  parliament,  including 
peers  of  the  realm,  were  made  liable  to  the  service  of  any  civil 
process  which  did  not  arrest  their  persons ;  and  service  of  such 
process  ujx)n  them  was  not  void,  as  your  honorable  committee  say 
of  the  subpoena,  and  as  has  lately  been  held  in  the  case  cited  in 
the  state  of  Maryland. 

If  that  learned  committee  had  extended  their  research  still 
further,  down  to  the  year  1770,  just  one  hundred  years  ago,  to  the 
thirteenth  year  of  the  reign  of  George  III,  they  would  have  found 
another  statute,  still  further  abridging  the  x^rivileges  of  members  of 
parUament ;  setting  forth  in  its  preamble  that  it  was  to  obviate 
the  inconvenience  and  delay,  by  reason  of  j^^'ivilege  to  the  king, 
and  his  subjects  in  prosecuting  their  suits,  &c.  "What  suits  had 
the  king  but  suits  in  his  name,  which  in  this  country  are  suits  in 
the  name  and  in  behalf  of  the  people  ? 

In  fact,  SU-,  for  the  lad  one  hundred  ycarf^,  the  privilege  of  par- 
liament has  not  been  such  as  your  honorable  committee  report  it 
to  be — but  has  been,  as  it  has  been  here,  limited  and  restricted  by 
statute,  and  confined  to  arrest  in  civil  cases — and  the  English  law 
of  privilege  now,  is  not  materially  different  from  that  of  the  state 
of  New  York.  Your  learned  committee  have  as  much  mistaken 
the  law  of  privilege  of  Great  Britain  as  they  have  the  law  of  privi- 
lege of  the  state  of  New  York. 

When  this  last  bill  to  limit  privilege  was  before  parliament,  that 

76 


G02  BEEACn   OF  PRIVILEGE. 

great  light  of  Englisli  jurisprudence,  Lord  Mansfield,  advocated  its 
passage,  and  I  quote  the  following  most  significant  remarks  from 
his  speech,  which  may  be  regarded  as  judicial  construction  of  that 
law.  He  says  :  "  It  may  not  be  popular  to  take  away  any  of  the 
priA'ileges  of  parliament,  for  I  very  well  remember,  and  many  of 
vour  lordships  ma}'  remember,  that  not  long  ago  the  popular  cry 
was  for  an  extension  of  privileges,  and  so  far  did  they  carry  it  at 
that  time,  that  it  was  said  that  privilege  protected  members  from 
criminal  actions,  and  such  was  the  power  of  popular  prejudice 
over  weak  minds,  that  the  very  decisions  of  some  of  the  coui'ts  were 
tinctured  with  that  doctrine.  '"■  ■■'■  ""'  It  was,  said  he,  undoubt- 
edly an  abominable  doctrine.  The  laws  of  this  country  allow  no 
place  or  employment  as  a  sanctuary  for  crime,  and  ivJiere  I  Jiave  the 
honor  to  sit  as  judge,  neither  roycd  favor  nor  popular  applause  shall 
ever  j^rotect  the  guilt  If.'''  -  "  Noble  patriot!  In  another  part  of 
his  speech,  he  said,  "  that  members  of  both  houses  should  be  free 
in  their  persons,  in  cases  of  civil  suits,  for  there  may  come  a  time 
when  the  safety  and  welfare  of  this  whole  empire  may  depend 
upon  their  attendance  in  parliament.  CJod  forbid  that  I  should 
advise  any  measure  that  would  in  future  endanger  the  state.  But 
this  bill  has  no  such  tendency.  It  expressly  secures  the  persons 
of  members  from  arrest  in  cdl  civil  sidts.  I  am  sure  were  the  noble 
lords  as  weU  acquainted  as  I  am  with  but  half  the  difficulties  and 
delays  that  are  every  day  occasioned  in  the  courts  of  justice  under 
pretense  of  privilege,  they  would  not,  they  could  not  oppose  this 
bill."  The  bill,  sir,  passed ;  and  for  one  hundred  years  that  is  the 
law  of  privilege  in  Great  Britam,  and  is  not  now,  as  your  honorable 
committee  have  reported  it  to  be. 

No  cases  can  be  found  like  those  cited  by  your  honorable  com- 
mittee since  the  passage  of  that  bill,  even  in  the  Englisli  courts. 
The  cases  cited  by  yom-  honorable  committee  are  before  that  time, 
and,  as  that  noble  man  declared,  tlicu  contained  a  tincture  of  that 
abominahle  doctrine. 

Mr.  Speaker,  have  I  not  shown  errors  enough,  m  the  basis,  upon 
which  your  honorable  committee  have  proposed  action,  to  show 
that  the  law  of  privilege  is  not  in  this  state,  what  is  claimed  for 
it?  There  is  not  now  even  an  approach  to  it,  as  laid  down  by 
your  committee,  in  England.     Why,  sir,  ten  years  before  the  pas- 


BKEACH   OF  PEIYILEGE.  603 

sage  of  tills  last  English  statute,  Lord  Preston,  a  peer  of  the  realm, 
was  committed  by  an  inferior  court  of  that  realm,  a  court  of  quar- 
ter sessions,  for  refusing  to  give  evidence  before  a  gi-and  jury  on 
an  indictment  for  high  treason.  He  obtained  a  habeas  coi-pus 
before  a  higher  court — the  king's  bench,  for  his  discharge.  When 
Holt,  Lord  Chief  Justice,  said :  "  He  had  committed  a  great  con- 
temi)t,  and  had  I  been  there  I  -would  have  lined  him,  and  com- 
mitted him  till  he  paid  the'  line." 

But,  sir,  I  have  done  with  English  authority'. 

Now,  sir,  it  only  remains  to  give  construction  to  the  words  cii-i/ 
process  in  our  statute.  If  an  attachment  issuing  out  of  a  criminal 
court  is  civil  jJi'ocess,  then  have  I  been  misled  by  books  of  author- 
ity ;  then  have  I  mistakenly  erred  in  deciding  the  law.  If  it  is  not 
civil  process,  then  my  decision  is  law,  and  must  stand  approved  by 
the  courts,  whatever  this  house  may  do.  Oh  !  the  peril  to  an  in- 
dependent judiciary !  AYould  to  God,  that  a  Marshall,  or  a  Kent, 
or  Manslield  had  the  decision  of  this  great  question !  That  is,  if 
they  would  stop  one  moment  to  entertain  such  question.  But,  sir, 
I  am  not  called  upon  to  estabhsh  that  the  subpoena  issued  by  the 
district  attorney  was  criminal  process,  that  burthen  is  not  legally 
put  on  me.  No  lawyer  will  say  it  was  civil  j^i'ocess.  I  did  not 
issue  that,  the  statute  makes  it  the  duty  of  the  district  attorney  to 
do  that, — and  yet,  in  theory,  it  issues  out  of  the  court  of  oyer  and 
terminer ;  and  disobedience  to  its  commands  is  regarded  as  con- 
tempt of  that  court.  But  the  question  is  not  that.  If  regularly 
issued,  its  service  was  good,  and  not  void.  It  was  in  the  eye  of 
the  law  a  contempt  to  disobey  it.  And  all  the  question  that  re- 
mains is  if  this  honorable  body  have  the  power,  and  could  enter- 
tain it  all,  was  the  process  issued  upon  that  contempt  a  civil 
jjrocess  ?  Tliis  honorable  body  is  called  upon  to  vote  distinctly 
iipon  the  meaning  of  those  words.  I  am  not  unwilling  to  sec  that 
record  of  names.  I  have  no  indisposition  to  see  the  lawj-ers  of 
this  house  put  then-  names  to  such  a  record.  If  with  the  light  of 
intelligence  of  this  day — if  with  a  sacred  regard  for  judicial  inde- 
pendence— if  with  a  patriotic  desire  to  avoid  conflicts  between  the 
co-ordinate  and  co-extensive  departments  of  the  sovereign  power 
— if  you  shall  act  with  freedom  from  all  spirit  of  wounded  dignity — 
if  with  jealous  care  you  feel  that  you  are  sitting  both  as  accusers 


004  BREACH  OF  rKKILEGE. 

and  judges,  and  that  the  sovereign  people  %Yill  hold  you  respon- 
sible for  your  action— if  you  shall  place  yourselves  upon  that  lofty 
plane  of  devotion  to  the  constitution  and  the  best  interests  of  this 
noble  state  ;  if  it  shall  be  your  just  pride  to  guard  and  protect  the 
rights  of  an  independent  judiciary  from  the  terrors  of  aggression 
of  a  co-ordinate  power ;  then,  sir,  I  have  no  fears  of  the  result. 

I  invoke  these  noble  and  elevating  considerations  to  your  hon- 
orable body.  But,  Mr.  Speaker,  I  desire  to  say  again,  that  my 
appearing  here  to-day  is  out  of  respect  to  this  high  department  of 
the  government — not  waiving  my  right  to  protest  against  being 
brought  here  at  all.  Nay,  sir,  by  the  advice  of  my  counsel  I 
should  not  have  appeared  at  all,  and  should  have  put  in  defiance 
the  power  of  this  body, — should  have  allowed  your  officer  to  exe- 
cute the  process  of  this  house  upon  my  person  and  held  you 
responsible  for  the  act.  But  my  own  judgment  has  dictated  to  me 
to  come  here  out  of  courtesy— without  waiving  my  right  of  protest 
or  acknowledging  myself  in  your  custody.  Although  I  have  ap- 
peared here  and  ofiered  this  defence,  I  do  not  say  that  I  submit 
this  case  to  you,  though  probably  that  will  be  the  effect  of  your 
action ;  but,  sir,  I  stand  here  protesting,  earnestly  pbotestixg, 
that  I  am  not  here  in  obedience  to  your  power,  but  here  out  of 
courtesy  to  an  independent  department  of  this  government. 

At  the  close  of  this  argument,  Mr.  Fields  made  a  motion  that 
Judf^e  Potter  now  withdraw  from  the  house  until  his  case  be  dis- 
posed of. 

The  speaker  then  informed  the  honorable  judge  that  he  could 
now  withdraw  to  the  library  room  until  his  case  was  decided. 

Judge  Potter— I  prefer  to  stay,  and  unless  driven  from  the 
house  by  its  power,  shall  remam. 

The  Speaker— The  request  of  the  honorable  judge  will  be  granted. 

Judge  Potter— I  have  made  no  request— and  took  his  seat. 

A  long  and  exciting  debate  followed. 

Mr.  Fields  offered  the  following  resolution  : 

"  Resolved,  That  the  Hon.  Piatt  Potter,  in  issuing  the  attachment 
for  the  arrest  of  Hon.  Henry  Pay,  a  member  of  assembly  from  the 
first  district  of  the  county  of  Ontario,  was  guilty  of  a  high  breach 
of  tlie  privileges  of  this  house,  and  censurable  therefor,  and  that 


BREACH   OF  rr.RTLEGE.  605 

he   be   reprimanded  by   the   speaker  in    the  presence   of    this 
house." 

This  resohition  received  no  support,  and  -was  withdi'awn. 

Mr.  Alvord  offered  the  foHowing  amendment  to  Mr.  Field's 
resohition : 

"  Resolved,  That  the  Hon.  Piatt  Potter  was  mistaken  as  to  the 
privileges  of  this  house  in  the  action  taken  by  him  in  the  an-est  of 
Hon.  Henry  Eay,  and  did  commit  a  breach  of  its  pri^dlege  in  so 
doing ;  but  this  house  do  not  believe  that  any  intention  or  desire 
to  interfere  with  the  independence  or  dignity  of  the  house  actuated 
him  in  the  performance  of  that  which  he  deemed  his  official  duty." 

Mr.  W.  D.  Muii^hy  offered  the  following  as  a  substitute : 

"  Jiesoh-ed,  That  the  Hon.  Piatt  Potter,  a  justice  of  the  Supreme 
Court  of  this  state,  be  discharged  from  the  custody  of  this  house 
until  the  hour  of  twelve  o'clock  on  the  first  day  of  March,  and 
that  in  the  meantime  the  opinion  of  the  attorney  general  be  com- 
municated to  this  house  as  to  the  construction  of  the  term  "  civil 
process,"  in  the  statute  exempting  members  of  the  legislature  from 
arrest."     Lost. 

The  question  was  then  taken  upon  the  resolution  of  Mr.  Alvord, 
and  was  adopted  by  a  vote  of  92  to  15,  and  the  case  was  discharged. 

But  as  we  have  seen,  that  the  legislature  of  the  state  of  New 
York,  have  not  consented  to  the  view  of  the  limitation  and  restric- 
tion of  the  law  of  privilege  as  it  is  claimed  to  be  under  oui'  statutes, 
and  have  insisted  in  thek  report,  that  they  possess  more  extended 
powers  of  the  ancient  common  law  though  they  have  settled  no 
law  by  their  action,  it  may  be  well  to  enter  upon  a  discussion  of 
that  connnon  law. 

If  it  then  be  true,  that  notwithstanding  our  statute,  which  would 
seem  to  create  a  limitation,  and  specifies  its  extent,  that  there  is 
still  a  common  law  privilege,  adopted  into  our  system,  from  the 
(!ommon  law  of  England,  it  may  be  well  to  give  a  little  attention 
to  the  ancient  parliamentary  law  of  England  ;  with  its  privileges, 
and  see  what  it  really  was  ;  how  and  by  what  law  it  has  been  con- 
strued, and  practised  ;  and  how  far  its  power  extends.  This  will 
present  many  grave,  and  vexed  questions  upon  the  very  thresh- 
hold  of  the  inquiries.     The  subject  is  one  of  great  delicacy,  and 


GOG  BREACH   OF  rKl\TLEGE. 

of  still  greater  importance,  aud  requires  to  be  treated  with  integrity 
and  freedom,  and  at  the  same  time,  with  decorum  and  respect. 

It  is  in  England  called  the  law  of  parliament.  This  law,  and 
what  it  was,  what  it  is,  and  how  it  has  been  changed  and  modified 
by  common  law  and  statute  to  conform  to  the  spirit  of  progress, 
the  due  appreciation  of  the  advancing  spirit  of  liberty,  and  the 
independence  of  the  citizen,  we  shall  briefly  attempt  to  show.  It 
can  be  found  by  any  one,  and  by  all  who  desires  its  attainment, 
by  diligent  seeking.  It  is  like  aU  other  knowledge,  the  reward  of 
search.  '  It  certainly  will  not  be  obtained  by  intuition.  There  is 
no  light  imparted  by  inspii'ation  to  a  mere  legislator,  unacquainted 
with  its  history,  whatever  may  have  been  his  experience  ;  it  is  ac- 
quired only  by  application,  research,  and  industry ;  by  examining 
the  records  of  parliament,  consisting  of  unwritten  customs,  and 
maxims  as  they  existed  from  period  to  period,  with  its  changes 
wrought  by  statute  and  the  adjudications  of  the  judges  of  the  sev- 
eral courts  of  law ;  from  experience  and  study,  and  familiarity 
with  "ihe  judicial  decisions  of  present  jurists,  and  their  prede- 
cessors. 

"  The  law  of  parliament,  says  Hallam,  a  as  detennined  by  regular 
custom,  is  incorporated  into  our  (English)  constitution ;  but  not 
so  far  as  to  waiTant  an  indefinite,  uncontrollable  assumption  of 
power  in  any  case,  least  of  all,  in  judicial  proceedings,  where  the 
form  and  essence  of  justice  are  inseperable  from  each  other." 
Junius,  an  EngHsh  writer  of  great  notoriety,  says,  h  that,  "  to  estab- 
lish a  claim  of  privilege  in  either  house,  and  to  distinguish  original 
right  fi-om  usurpation,  it  must  appear,  1st,  that  ifis  indispensably 
necessary  for  the  performance  of  the  duty  they  are  employed  in ; 
and  2ndly,  that  the  privilege  claimed,  has  been  uniformly  allowed, 
so  as  to  establish  it  as  law." 

Dwarris,  in  liis  work,  on  the  subject  of  parHamentary  privilege, 
has  collected,  in  a  condensed  form,  more  of  the  customs  and  claims 
of  members  of  parliament  on  the  question  of  their  privilege ;  and 
may  be  regarded  as  more  reliable  authority,  than  perhaps,  any 
other  English  writer.  Many  of  his  most  judicious  citations  and 
comments,  may  with  advantage  and  profit  be  transcribed  into  an 
American  work,  as  the  law  of  privilege  in  this  country,  eventliough 

a  Hist,  of  Middle  Ages,  Vol.  2.  -     h  Letter  14. 


PARLLViTENTAKY  LAW  OF  PMTILEGE.  607 

it  may  here  be  limited,  and  perhaps  reguhxtcd,  by  constitutions 
and  statutes. 

Tliis  parliamentary  law  and  the  law  of  privilege  has  been  but 
little  discussed  in  this  country,  and  the  want  of  uniformity  in  the 
Ifiw  of  legislative  privilege,  in  the  different  states,  has  left  this  law 
peculiar  indefinite,  undefined,  uncertain,  complex  and  obscure,  or, 
in  the  language  of  Lord  Coke, a  "ab  omnibus  quacrcnda,  a  mnltis 
ii/Kord/a,  a  pauci.s'  coquita  ;''  "to  be  sought  by  all,  unknown  to 
many,  and  known  to  few."  Which  Lord  Holt  says,  b  is  "because 
they  will  not  apply  themselves  to  understand  it." 

This  sober  and  warranted  claim  of  a  peculiar  law,  (says  Dwar- 
ris),  c  determined  by  regular  custom,  never  has  been,  and  is  never 
likely  to  be,  disputed  by  the  courts  of  common  law,  which  are  by 
no  means  wanting  in  deference  for  the  legislature,  or  disinclined 
to  support  their  "  ancient  and  just  ]irivileges."  A  class  pecuharly 
instructed  in  the  histoiy  of  our  institutions,  "svill  always  best  know, 
how  far  the  real  essential  privileges  of  parliament  have  been  in 
the  past,  and  may  again  become  in  the  future,  the  safeguards  of 
the  rights  and  liberties  of  the  people.  Any  privilege  truly  esseu- 
tiiil  to  the  dignity,  and  to  the  proper  exercise  of  the  authority  of 
tlie  legislature,  will  be  as  safely  guarded  by  the  judges  of  the 
present  times,  as  by  the  most  popular  senator,  or  member  of  the 
house.  No  doubt  the  constitutional  lawyer  will  be  ever  vigilant 
to  detect,  and  fuin  to  opp'ose,  the  encroachments  of  arbitrary 
power,  in  hoAvever  specious  forms,  and  under  however  venerable 
names,  it  may  appear.  Tyranny,  he  will  say,  is  not  privilege. 
Privilege,  when  the  term  is  not  improperly  used  and  confounded 
v»ith  power,  (which  may  be  abused ;)  implies  protection.  Privi- 
lege is,  or  ought  to  be,  protection — against  the  tyranny  of  the  one, 
the  few,  or  the  many.  Such  an  inquirer  will  temperately  call  for 
— the  record  of  regular  custom ;  the  palpable  evidence  of  enjoy- 
ment ; — the  sanction,  the  recognition  of  allowance ;  the  admitted 
precedents  and  authorities,  the  series  of  which  establishes  the 
right ; — and  if  he  find  the  claim  unaccompanied  with,  and  unsup- 
ported by,  these,  ho  will  plainly  repudiate  the  "tyrant  jolea  of 
necessity"  for  advanced  powers. 

a  1  Inst.  11.  h  -1  La.  Ilayu,  1114. 

G  Vol.  1,  105. 


008  TAELIAMENTAEY  LAW  OF  rrJ^TLEGE. 

By  this  customaiy  law,  wliicli  if  it  be  not  anywhere  prescribed 
in  clear  and  explicit  terms,  or  expounded  in  particular  stated 
maxims,  is  yet  ascertainable,  as  being  determined  by  regidar  cus- 
tom, and  subject  to  certain  prescriptive  limitations,  are  all  ques- 
tions of  parliamentary  privilege  to  be  tried.  And  such  law  is  to 
be  expounded  by  that  house,  to  which  any  matter  that  arises 
properly  relates,  and  no  where  else  ;  excejjtis  exvipicndis. 

Blackstoue  seems  to  suppose  that  "  the  dignity  and  indepen- 
dence of  the  two  houses  are  in  a  gi-eat  measure  preserved  by  keep- 
ing their  privileges  undefined." 

It  is  the  unrestricted  use  of  these  and  similar  expressions,  "  no- 
where  ascertained,"    "indefinite,"   and  "undefined,"  which    has 
probably  led  to  so  many  crude  conceptions,  and  even  vag-ue  specu- 
lations, upon  the  true  nature  of  this  customary  law.     Because  the 
lex  parliamenti  has  not  been  dogmatically  treated  in  an  institu- 
tional method;   because  it  has  not  been  defined,  distinguished, 
codified,  classified,  expounded  and  commented  upon  ;  (simplified, 
like  other  branches  of  English  law,  till  it  became  complex,  and  elu- 
cidated, till  it  was  made  obscure) ;  it  has  been  often  erroneously 
supposed  that  it  must  be  unsettled  in  its  doctrines,  indeterminate 
and  arbitrary.     But  then  it  was  forgotten  that  the  very  name  and 
nature  )i  this  special  law  and  particular  system  of  customs,  ex  vi 
termini,  imports  something  permanent,  uniform  and  universal.     A 
legal  or  parhamentary  custom  must  be  certain,  known,  fixed  and 
invariable.     And  if  not  set  out  in  stated  maxims  in  any  institute 
or  commentary,  yet,  when  it  can  be  ascertained  by  learned  lucu- 
brations from  the  '' lyrcderitorum  memoria  eventorum  f  then,  in 
the  contemplation  of  law,  id  certmn  est  quod  certum  reddi  j)oiest. 
And  maxims  of  a  peculiar  law,  which  can  be  found  in  precedents, 
traced  in  parhamentary  history,  and  verified  by  the  records  of 
both  houses  of  parliament,  do  really  acquire,  from  the  authentic 
nature  of  their  evidence,  a  character  of  fixity  and  stability,  which 
more  than  levels  them  in  pomt  of  certainty,  with  any  other  tradi- 
tionary branch  of  our  municipal  jurisprudence. 

But  who,  it  will  be  inquired,  are  to  be  the  judges  of  this  law,  and 
how  is  it  to  be  expounded?  The  two  houses  of  parhament  re- 
spectively, claim  to  be  the  proper  and  solo  judges  of  their  own 
pecuhar  privileges.     In  what  sense  is  this  claim  to  be  understood  ? 


PARLIAMENTAllY   JAW   OF   PRIVILEGE.  609 

As  a  claim  of  exclusivo  jurisdiction  (tuul  not  of  uncontrolUiMc 
power ;)  it  is  intelligible  and  (riglitly  considered,)  not  ill  ioimded  ; 
though  subject  to  some  qualitication,  and  to  an  exception  which 
does  not  destroy  the  rule.  AVhere  a  privilege  is  undeniable,  and 
only  its  observance  is  m  question,  the  house  to  which  the  matter 
relates,  is  alone  competent  to  tiy  the  issue  of  its  respect  or  viola- 
tion. And  the  courts  of  common  law,  Avhich  will  ever  readily  sup- 
port and  give  effect  to  all  the  rightful  privileges  of  parliament 
which  can  be  unequivocally  ascertained,  Avill  also  cautiously  abstain 
from  interfering  with  the  punishments  of  either  house  for  a  con- 
tempt, which  is  certainly  "  proper  to  the  jurisdiction  against  which 
the  contempt  is." 

But  it  is  ob\dous  that  cases  may  arise,  where  a  privilege  may  be 
claimed  by  either  house  of  parliament,  and  regarded  as  essentially 
necessary  to  the  due  discharge  of  its  legislative  fvmctions,  which 
is  not  so  much  supported  by  direct  proof,  as  drawn  from  analogies, 
more  or  less  just ;  in  which  event  reasonable  doubts  as  to  the  ex- 
istence or  extent  of  the  privilege,  may  be  entertained,  both  in  the 
courts  and  in  the  country.  In  all  such  cases,  where  the  privilege 
is  imperfectly  evidenced,  obscure  or  doubtful,  the  fittest  and  most 
desirable  course  would  ever  seem  to  be,  with  a  view  to  quiet  the 
public  mind  and  to  avoid  all  unseemly  collisions,  to  settle  the 
question  by  a  declaratory  act.  The  claim  of  privilege  was  origin- 
ally the  claim  of  the  high  court  of  parliament ;  not  of  either  house 
separately,  but  of  both  houses  conjointly  ;  and  where  the  privilege 
is  real,  and  essentially  just  and  necessary,  there  can  be  no  doubt 
but  that  both  houses  would  concur,  to  support  and  declare  it. 

The  right  then,  in  either  house  of  parliament,  of  exclusively  de- 
termining upon  any  violation  of  their  aclmowledged  privileges,  is 
unquestioned,  when  acting  Avithin  the  sphere  of  their  authority. 
In  this  primary  sense,  and  subject  to  this  limitation,  the  two 
houses  respectively,  are  with  propriety  said,  to  be  the  sole  judges 
of  their  own  privileges ;  that  is,  whether  the  privileges  in  question 
{  re  notorious,  and  have  been  infringed  in  the  particular  instance  ; 
and  in  what  manner  they  shall  be  vinelicated  and  then*  infraction 
punished. 

They  are  also,  singularly,  the  persons  to  judge  of  their  own 
peculiar  forms  and  manner  of  proceeding.     The  house  is  con- 
77 


GIO  PARLLVMENTAEt  LAW  OF  rKIYILEGE. 

fessedly  the  sole  judge  of  its  own  privileges,  wliere  the  subject- 
matter  falls  properly  within  its  jurisdiction ;  as,  for  any  matter  that 
occurs  within  the  walls  of  parliament ;  so,  upon  whatever  is  neces- 
sary to  the  transaction  of  business  there,  or  for  the  protection  of 
individual  members,  to  enable  them  to  discharge  then'  parhamen- 
tary  functions ;  or  for  the  punishment  of  persons  guilty  of  con- 
tempts to  the  house,  or  of  obstructing  its  proceedings.  When  the 
subject-matter  falls  within  the  jurisdiction  of  the  house,  its  adju- 
dication is  final,  and  a  court  of  law  cannot  question  its  judgment ; 
for,  in  such  case,  the  power  of  the  house,  or  the  due  exercise  of  its 
power,  is  the  original  and  primary  matter  propounded  to  the 
court,  and  arises  directly. 

The  judges  will  however  take  conusance  of  the  privileges  of  par- 
liament, wdiere  questions  concerning  those  privileges,  are  brought 
collaterally  or  incidentally  before  them  for  judgment,  in  the  way 
of  suit  or  action,  when  the  court  is  obliged  to  determine  the  ques- 
tion raised,  to  prevent  a  failure  of  justice.  They  wUl  not  them- 
selves raise  the  question,  or  suffer  it  to  be  raised  by  others,  when 
it  has  been  properly  decided  by  comj)etent  authority.  They  will 
not  entertain  the  point  so  disposed  of,  when  it  comes  before  them, 
as  it  is  then  held  to  do,  directly ;  because  cognizance  of  it  belongs 
ad  aliud  examen  ;  but  will  entertain  it  only  when,  as  Sir  Thomas 
Jones  said  in  Lord  Shaftesbury's  case,  a  "  It  is  an  incident  to  the 
cause  before  them,  of  which  they  are  already  possessed."  And 
then,  it  should  never  be  forgotten,  that  the  rule  by  which  the 
question  will  be  tried, — the  law  upon  which  the  decision  of  the 
judges  will  proceed,  is  that  same  peculiar  law,  the  identical  lex  et 
consuetudo  parliamenti,  truly  said  to  be  a  part  of  the  lex  terrce,  of 
which  the  judges  are  bound  to  inform  themselves,  and  by  which 
the  determination  of  such  matters  is  held  to  be  properly  governed. 

To  draw  the  line  between  the  question  of  privilege  coming 
directly  before  the  court  and  the  cases  in  which  it  comes  mciden- 
tally,  would  be  a  rash  undertaking  in  a  text  writer.  The  rule  is 
certainly  difficult  of  application  ;  but  it  is  quite  sufficient  for  his 
province,  to  demonstrate,  that  it  is  the  rule,  according  to  the  de- 

a  2  State  Trials,  615;  1  Mod.  144.  This  was  a  case  of  contempt,  committed  by 
a  member  of  the  house  of  lords,  within  their  own  body  while  in  scssion^an  act 
vdthin  their  exclusive  jurisdiction,  and  the  court  of  king's  bench  for  this  reason 
held  that  they  had  no  jurisdiction  to  grant  relief. 


rARLIAJVIENTAKY   L.VW   OF  ritlYELEGE.  01 1 

cisions  of  tlio  most  learned  judges,  ancient  and  niodcni.  "Whero 
the  interests  of  third  persons  involved  in  litigation,  come  to  bo 
decided  upon  in  a  court  <jf  law,  the  direct  question  before  the  court 
is  the  right  of  ])arties  who  are  strangers  to  the  houses  of  parlia- 
1  lent ;  and  if  a  collateral  issue  be  raised  iu  the  course  of  the 
j.leadings  on  any  question  of  parliamentary  privilege,  tliat  comes 
in  incidentally.  "Where  either  house  of  jiarliament  has  adjudi- 
cated upon  the  particular  case  between  the  same  parties,  and  that 
question  of  i)rivilege  is  afterwards  brought  before  a  court  of  law, 
it  arises  directly. 

But  two  things  nuist  concur,  to  make  the  decision  of  the  house 
final.  They  must  have  decided  the  precise  question  ; — the  con- 
tested matter  must  have  passed  in  rem  judicatam  ;  and  they  must 
possess  jurisdiction  to  decide  it ;  and  then  no  court  ought  to  in- 
quire whether  the  house  has  adjudicated  properly  or  not.  But 
where  the  house  has  clearly  no  jurisdiction,  at  all,  over  the  sub- 
ject-matter ;  as,  if  the  house  of  commons  assumed  the  exercise  of 
a  general  criminal  jurisdiction, — or  the  lords,  that  of  original  jurLs- 
diction  over  suits, — accompanied  in  both  cases  by  resolutions  that 
they  respectively  possessed  the  power  to  put  men  to  death  for 
offences,  and  to  entertain  original  suits, — notwithstanding  any  ad- 
judications made  by  them,  and  also,  that  the  question  would  arise 
du-ectly  upon  the  act  of  either  house,  the  com't  would  still  un- 
doubtedly interfere.  This  shows  that  the  test  afforded,  though  a 
known  and  settled  distinction,  is  quite  unsatisfactor}-,  without  also 
considering  the  question  of  jurisdiction  in  the  adjudicating  forum. 
Where  either  house  has  expressly  decided  upon  a  question  of 
pri\-ilege,  the  only  question  any  longer  open,  is  whether  the  sub- 
ject-matter does  properly  fall  within  its  jimsdictiou,  or  whether 
the  claim  set  up,  exceeds  the  legal  limits  of  privilege,  and  the 
house  has  usurjied  a  power  it  does  not  possess.  , 

Bnf,  (as  if  it  icere  designed  to  Y>rop  up  a  defective  authority,  ichich 
it  could  not  supply)  ;  the  house  has  sometimes  declared  by  votes  or 
•esdutions,  that  it  does  possess  the  privilege  in  question ;  and  in  addi- 
tion to  being  party  and  judge,  claims  to  be  a  2citness  ; — and  that,  on 
interested  witness,  giving  testimony  in  his  own  favor!  What  is  the 
due  effect  of  such  resolutions  ? 

When  privileges  claimed  by  the  house  of  commons  have  been 


612  PAELIAMENTAP.Y  LAW  OF  PRIVILEGE. 

of  necessit}-,  submitted  to  tlie  examination  of  the  courts  of  commoi. 
law,  and  have  been  found  unsupported  by  usage  and  evidence  of 
enjoyment,   (upon  -which  they  confessedly  depend),  such  claims 
have,  (vvhatever  votes  may  have  passed  in  either  house  upon  the 
subject),  always  been  disallowed.     As,  when  a  joint  privilege  was 
claimed  by  members  of  the  house  of  commons  "  not  to  be  im- 
prisoned or  impleaded  during  the  time  of  parhament,"  the  barons 
of  the  exchequer, «  while  they  recognized  the  former  claim  of 
pri^alege,  decided  that  there  was  no  such  privilege  as  the  latter, 
"  quin  quod  iitiplacitari  dehent ;"  deciding  one  claim  in  favor  of  the 
house  of  commons,  and  one,  against  them.     So,  in  the  great  case 
of  h  Burdett  and  Abbott,  the  house  of  commons  of  that  day,  be- 
comingly submitted  the  existence,  as  well  as  the  exercise,  of  the 
privilege  then  disputed,  to  the  decision  of  a  court  of  justice.    The 
question  was,  (as  it  must  be),  entertained  by  the  court  of  queen's 
bench, — was  most  elaborately  argued  and  comprehensively  con- 
sidered.    The  court  unanimously  upheld  the  arrest  of  the  defen- 
dant as  legal,  and  their  judgment  was  unanimously  affirmed  in  the 
exchequer  chamber,  and  afterwards  in  the  house  of  lords.     The 
courts  of  law,  original  and  appellant,  supported  the  house  of  com- 
mons and  affirmed  the  privilege ;  as  they  always  will  be  found  to 
do,  when  the  claim  is  proper.     But  the  proceeding  of  the  house  of 
commons,  relied  upon  in  that  case  as  a  defence,  was  upheld,  not 
because  it  was  claimed  as  a  privilege  by  the  house,  or  declared  or 
resolved  by  them  to  be  their  privilege,  but  because  it  was  a  privi- 
lege, well  known  to,  and  always  recognized  by  law.     "  There  can 
be  no  privilege,"  says  Lord  Clarendon,  "  of  which  the  law  doth 
not  take  notice,  and  which  is  not  pleadable,  by,  and  at,  law." 

"  Thus,"  as  was  most  ably  urged  in  the  excellent  argument  in 
Burdett  and  Abbott,  "  is  it  rendered  apparent,  that  one  branch  of 
the  legislature  cannot,  by  any  votes,  create  a  new  privilege ;  be- 
cause in  several  of  the  cases,  the  commons  had  claimed  privileges, 
which  were  questioned  in  the  courts  of  law  and  disallowed  by  the 
parliament."  No  resolution  of  either  house  of  parliament  can  make 
t/tat  a  legal  and  constitutional  privilege  lohich  was  not  so  before.  A 
court  cannot  give  itself  jurisdiction  hy  adjudging  that  it  enjoys  it. 

To  create  a  new  privilege  would  in  effect,  be  making  a  new  law, 

a  Donne  and  Walsh,  4  Register,  752.  h  14  East,  140. 


PARLIAMENTAEY  L.VW   OF  nilVILEGE.  C13 

which  one  house  singly,  cannot  do.  This  leads  io  tliu  necessary 
qualification  of  the  stated  rule.  The  law  of  parliament  may  be 
expounded  by  themselves,  fi"om  time  to  time,  but  cannot  be  ex- 
tended, without  the  authority  of  the  whole  legislature.  Members 
of  either  house  of  parliament,  constituting  per  se,  only  a  part  of  the 
sovereign  power  in  the  state  (which  alone  can  make  new  lawsj, 
have  not  an  unlimited  right  of  creating  and  extending  exceptions 
in  then*  own  favor.  When  Fortescue  says o  of  parhament: — "It 
is  so  high  and  mighty  in  its  nature,  that  it  may  make  law,  and 
that  which  is  law  it  may  make  no  law,"  he  is  enlarging  upon  the 
transcendent  power  of  parliament  in  its  collective  and  legislative 
capacity.  And  what  is  obviously  true  of  the  whole,  becomes 
monstrous  Avlien  applied  to  a  part.  And  this  is  not  only  sound 
legal  doctrine,  but  it  is  also  admitted  parliamentary  "  law  and  cus- 
tom." In  1704,  the  lords  communicated  a  resolution  to  the  com- 
mons, at  a  conference  :  "  That  neither  house  of  parliament  have 
power,  by  any  vote  or  declaration,  to  create  to  themselves  new 
privileges,  not  waiTanted  by  the  known  law  and  custom  of  parlia- 
ment ;  which  was  assented  to  by  the  commons ;"  and,  indeed,  is 
not  now  contested  on  their  behalf.  And  yet,  who  will  logically 
deny,  that  if  they  could  give  themselves  jurisdiction  to  decide  in 
favor  of  doubtful  powers,  the}'  would  create  new  privileges  ?  ' 

The  result  is,  that  the  determination  and  knowledge  of  privilege 
of  parhament,  belongs  to  the  members  of  the  two  houses  respec- 
tively, with  the  limitation  before  stated  ;  but  in  declaring  the  law, 
they  act  judicially,  and  are  under  a  solemn  obligation /»s  dicere 
and  notJK^s  dare;  and  they  must  not  extend  their  jurisdiction,  or 
the  determination  will  be  coram  nou  judice,  and  void.  Their's  is, 
at  the  very  utmost,  indisputably,  a  special  jurisdiction,  exercised 
in  expounduig  a  peculiar  law  within  circumscribed  bounds,  which 
must  not  be  exceeded.  And  if  they  should  in  any  case 'decide 
mistakingly,  (et  midti  et  honi  homines  idemfecerinit,)  and  pronounce 
a  judgment  in  favor  of  a  privilege  new  in  principle,  and  not  merely 

/     a  Thorpe's  Case,  32  Hen.  6;  5  Kot.  Pari.  239. 

Note  1. — This  resolution,  it  may  be  borne  in  mind,  was  lour  yoai-s  subsequent 
to  the  act  of  parliament  of  13  Geo.  HI,  abridging  and  defining  the  privilege  of 
members  of  parliament,  and  was  but  a  modest  and  public  manifestation  of  will- 
ing obedience  to  law,  and  to  the  demands  of  public  sentiment 


614  PAELMMENTARY  LAW   OF  TEIYILEGE. 

m  terips,  and  never  before  claimed  or  allowed  in  the  history  of 
parliament ;  such  their  new,  nnfonndcd,  parliamentary  law, — Uke 
any  erroneous  decision  of  the  judges  in  the  common  law  courts ; — 
must  be  declared  not  to  be  parliamentary  law  according  to  the  lex 
it  consuefudo  pcuiianicnti ;  it  must  be  pronounced,  that  there  exists 
no  such  privilege ! 

To  be  as  explicit  as  possible  upon  so  delicate  a  subject,  it  is 
apprehended  that  the  decisions  of  the  two  houses  of  parliament, 
in  cases,  of  which,  (when  within  then:  jurisdiction,)  they  are  ad- 
mitted to  be  the  sole  competent  judges,  are  fitly  governed  by  usage 
and  controlled  by  precedents.  "  They  are,"  says  Lord  Clarendon, 
"  the  only  judges  of  their  own  privileges ;  but  that  their  being 
judges  of  their  own  privileges,  should  quahfiy  them  to  make  new 
privileges,  or  that  their  judgment  should  create  them  such,  was  a 
doctrine  never  before  now,  heard  of."  a 

j_nd  if, — ichen  theij  suppose  themselves,  to  he  only  recognizing  an 
old  privilege,  they  are  in  reality,  creating  a  neiv  one,  is  it  not  too  much 
to  contend  that  their  not  ill  intentioned  mistalx,  may  not  he  corrected  ; 
that  their  eroneons  judgment,  ivhen  hrought  hefore  the  sioorn  judges  of 
the  land  sitting  to  administer  justice  according  to  laiv,  in  all  cases 
hrought  judicially  hefore  them  ;  neither  seeking — nor  declining, — hut 
only  conscientiously  deciding  questions  ivhichmust  be  decided, — that 
a  judgment,  of  ivhich  they,  the  recognized  interpreters  of  the  law,  dis- 
cover the  unsoundness,  must  he  received  as  valid, — alloived, — adopted 
and  enforced  hy  tJie  judges  sicorn  to  do  the  right — and,  all  the  while 
perceiving  this  to  le  the  wrong  !  Is  not  this  absurd  and  most  unrea- 
sonable ?     Is  it  not  monstrous  ? 

It  is,  also,  impracticable.  The  attemjjt  to  withdraw  the  ultimate 
determination  of  questions  of  privileges,  coming  in  question  in  cases 
within  the  jurisdiction  of  the  respective  courts,  from  the  courts  of  com- 
mon laiv  ;  —from  those  courts,  in  ivhich  the  prerogatives  of  the  cromi 
are  subject  to  be  questioned  and  overruled, — ivill  never  succeed.  Par- 
ties and  their  ivitnesses,  judges,  officers,  sherifs,  counsel  and  attorneys, 
may  all  be,  again  and  again,  committed  ;  but  fresh  actions  will  he 
brought,  and  succeeding  judges,  officers,  and  prof  essional  men  ivill  do, 
ivhat  they  deem,  their  duty. 

Is  it  not  better  then,  to  acquiesce,  in  the  known,  settled,  and 

a  Hist.  Eebell.  Vol  2,  Book  4,  398- 


PABLIAMENTARY  L.\.\V   OF  PKniLEGE.  G15 

single  exception  to  the  rule,  tliut  the  members  of  the  two  houses 
respectively,  are  the  sole  judges  of  their  own  privik-ges  ;  except 
when  tlicy  come  in  question  incidcntaUij  and  collaleralbj  he/ore  the 
rourts  of  laio  in  the  ivay  of  suit  or  action  ; — or  when  the  house  has 
io  jurisdiction  over  the  subject  matter ; — in  both  of  which  cases 
the  appointed  constitutional  expositors  of  the  law,  must  inquho 
into  and  determine  the  question,  to  prevent  a  failure  of  justictj  V 

And  if  such  be  the  reason  and  justice  of  the  case,  how  stands  it 
upon  the  foot  of  precedent  and  authority  ? 

The  counsel  for  the  house  of  lords  in  Lord  Shaftsbury's  case,  a 
the  attorney  general  (Jones,)  himself  admitted,  "  that,  if  an  ac- 
tion be  brought  where  privilege  is  pleaded,  the  court  ought  to 
judge  of  it ;  as  an  incident  to  the  suit,  -whereof  the  court  is 
possessed." 

The  same  rule  was  laid  down  by  Lord  Chief  Justice  Holt,  iu 
the  case  of  the  Aylesbury  men.  h 

The  same  doctrine  was  recognized  by  Lord  Chief  Justice  De  Gray 
in  Brass  Crosby's  case,  c  "  The  coimsel  at  the  bar,"  my  lord  said, 
"  have  not  cited  one  case,  where  any  court  of  this  hall,  ever  deter- 
mined a  matter  of  privilege,  which  did  not  come  incidentally 
befoi'e  them." 

And  this  result  of  the  case  was  referred  to  with  commendation, 
by  Grose,  J.,  in  E.  v.  Flower,  d 

All  these  eminent  authorities,  agree  in  the  right  and  the  duty 
of  the  judges,  to  take  conusance  of  the  privileges  of  parliament, 
when  questions  concerning  those  privileges  are  brought  inciden- 
tally iu  judgment  before  the  court  in  actions  by  parties  complain- 
ing of  injuries  within  the  jurisdiction  of  the  court.  "  When  in  a 
common  action,  the  privilege  of  parliament  does  come  to  be  part 
of  the  plea  or  justification,  it  is  of  necessity,"  says  Sir  Orlando 
Bridgman,  "  that  the  privilege  set  up  to  defeat  the  action,  whether 
there  be  such,  and  what  the  extent  of  it,  come  also  into  considera- 
tion." e 

^     This  the  sworn  duty  of  the  judges  of  the  land,  is  confined  how- 
ever, to  cases  of  privilege  brought  judicially  before  them.     The 

a  2  state  Trials,  605.  1  Mod.  144.  6  8  State  Trials,  102. 

c  3  Wills.  202.  dST.K.  345. 

«  Benyon  and  Everlyn,  T.  14,  Car.  2,  Kot.  2558. 


616  PARLIAMENTARY  LAW   OF  PRRTLEGE. 

judges  will  decline  to  pronounce  an  opinion  upon  privilege  of  par- 
liament, except  where  the  question  comes  before  them  in  a  legal 
way  ; — as  they  did  in  Thorpe's  case ;  and  ilien.  (when  it  is  in  such 
manner,  forced  upon  them ;)  the  highest  authorities  concur  in 
holding,  that  they  are  bound  to  take  cognizance  of  the  existence 
and  extent  of  the  privilege,  and  to  decide  upon  it.  "  If  a  question 
arise,  determinable  in  the  King's  Bench,  the  King's  Bench  must 
decide  it;"  said  Lord  Holt  in  II.  v.  Knollys.  a 

And  even  Mr.  Justice  Powell,  wdiose  opinions  were  ever  strong 
and  decided  in  favor  of  parliamentary  privilege,  recognized  in  R. 
V.  Paty,  h  this  single  exception  to  the  doctrine  of  exclusive  juris- 
diction in  parliament.  "  This  court,"  he  said,  "  judges  the  privilege, 
only  incidentally  ;  for  when  an  action  is  brought  in  this  court,  it 
must  he  given  one  ivay  or  the  other." 

Mr.  Justice  Patterson  made  the  same  remark  in  Stockdale  and 
Hansard;  with  the  addition  that  the  judgment  he  w^as  compelled 
to  give,  should  be  the  conclusion  of  his  own  mind,  and  not  the 
dictation  of  others.  To  the  same  effect  are  the  judgments  of  the 
other  judges  in  the  modern  cases. 

Such  is  believed  to  be  the  sound  doctrine  upon  this  delicate  and 
difficult  subject,  and  it  will  be  found  to  admit  all  the  claims  of  the'* 
two  houses  to  the  determination  of  questions  of  privilege,  which 
can  be  supported  upon  a  temperate  consideration  of  the  subject ; 
and  to  reject  such  views  alone,  as  are  not  only  not  consonant  to 
reason,  or  agreeable  to  law,  but  ^e  also  repugnant  to  the  spirit  of 
the  constitution. 

It  will  have  been  collected  from  the  preceeding  pages,  that  the 
two  houses  of  parliament  respectively,  are  empowered  to  try  ques- 
tions relating  to  their  own  privileges,  (m  which  they  are  conse- 
c[uently  parties,)  by  a  peculiar  law  of  their  own.  That  they  are 
ordinarily,  the  sole  judges  and  interpreters  of  that  law  ;  and  it  will 
be  seen  subseqiiently,  that  they  themselves,  execute  then-  own 
decrees,  by  officers  of  their  own.  This  anomalous  and  most  ex- 
tensive authority,  they  indisputably  possess,  and  it  may  be  essen- 
tially necessary  to  the  free  and  independent  exercise  of  their 
high,  constitutional  functions,  that  they  should  be  invested  with 
such  extraordinary  powers. 

a  2  Salk.  509.  h  2  Lord  Ptaym.  1105. 


PARLIASIEKTARY  LAW  OF  TRIVII^GE.  617 

"  But  this  is  not  all.  The  peculiar  law,  by  which  these  cases  are 
governed,  is  not  enunciated ;  is  unascertained  a  loriori ;  which 
necessarily  subjects  Englishmen,  (in  this  one  particular  instance) 
to  the  dominion  of  the/».v  vcujnm  ei  mco<jiuturii,  said  to  be  ever,  the 
worst  species  of  tyranny.  And  the  law  being  thus  kept  undivulged 
in  the  breasts  of  the  judgc^s,  is,  (as  is  avowed  by  the  indiscreet 
advocates  of  iudefinate  privilege,)  extendible,  at  their  pleasure,  to 
all  other  cases,  pro  re  nata.  How  desirable  is  it ;  that  such  an  au- 
thority, should  have  some  circumscription !  the  lunitation  of  usage ; 
the  control  of  precedents. 

And  these  extraordinary  powers,  are  not-  deemed  sufficiently 
transcendent,  but  it  has  been  unadvisedly  contended,  that  every 
decision  of  parliamentary  privilege  in  either  house,  however  erron- 
eous it  may,  by  possibihty,  be,  shall  be,  final  and  conclusive.  And 
every  rextravagant  excess  of  jurisdiction  ;  every  assumption  of 
power,  however  arbitrary  and  unfounded,  shall  be  withdrawn  from 
the  control  of  the  common  law  ! 

The  true  doctrine ; — that  the  law  of  parliament  is  determined 
by  regular  custom ; — the  rule,  that  the  determination  of  privilege 
belongs  to  the  two  houses  respectively  ;  — the  qualification  ;  that, 
although  they  may  generally  expound,  they  must  not  extend  it ; 
with  the  exception, — of  cases  not  within  the  jurisdiction  of  the 
house  f  or  where  privilege  is  brought  before  the  judges  incidentally, 
as  matter  of  excuse  or  justification  imported  into  a  cause,  and 
absolutely  requiring  their  judgment ; — the  general  doctrine,  the 
rule  and  the  exception,  are  believed  to  have  been  all,  before  cor- 
rectly stated, 

Happy  will  be  the  result,  if  a  dispassionate  consideration  of  the 
principles  and  authorities ;  the  law  and  practice ;  shall  tend  to 
settle  the  distressmg  doubts  which  have  long  existed,  shall  con- 
tribute to  terminate  those  fraternal  conflicts  between  the  legislature 
and  the  judicature,  which  the  best  and  wisest  men,  will  see  the 
most  reason  to  deplore.     And  are  not  some  traces  perceptible  of 

*  As,  e.  g.  if  the  house  of  commons  were  to  claim  to  determine  questions  of 
property  without  a  jury;  or  to  inflict  punishments  for  not  taking  an  oath,  which 
they  have  no  power  to  administer;  cases  not  likely  to  occur  now,  but  used  for 
illustration. 

78 


618  TAELIAMENTAEY  L.iW  OP  TRIVILEGE. 

an  approximation  to  tliis  desirable  end ;  — this  legislative  and  ju- 
dicial uuaniniity  ?  -     Cannot  future  collisions  be  prevented. 

As  regards  tlie  past,  no  slight  errors  have  been  committed  on 
both  sides  ;  but  when  questions  come  to  be  calmly  considered, 
when  the  voice  of  reason  is  attended  to,  juster  views  will  gradually 
obtain,  and  sounder  principles  become  established. 

The  claim  on  the  part  of  parliament  to  be  governed  by  a  peculiar 
law,  has  been  sometimes  too  lightly  questioned.  The  lex  jparlia- 
mentaria,  has  been  said  to  be  merely  a  part  of  the  lex  terrce  ;  like 
the  ecclesiastical,  military,  or  maritime  laws ;  leges  indeed ;  but 
sub  graviori  lege :  to  be  construed  at  all  times  by  the  common  law 
courts  in  the  ordinary  w^ay. 

But  such  is  not  the  case  with  the  lex  jjarliamentaria,  which  is 
1st,  a  peculiar  law  of  a  special  nature,  and  2ndly,  is  confessedly  to 
be  construed  by  the  parliament  itself ;  and  only  deteiToined  by  the 
judges  in  extraordinary  cases,  when  they  cannot  escape  fi'om  de- 
ciding it.  And  then,  whatever  the  court,  superior  or  inferior,  the 
case  is  always  to  be  tried  by  the  law  of  parhament.  In  this  re- 
spect then,  some  scintiUce  of  doctrine  have  been  advanced,  which 
cannot,  it  is  apprehended,  in  strictness  be  supported. 

On  the  part  of  the  house  of  commons,  extravagant  claims  of 
privilege, — unwarrantable  extensions  of  jurisdiction,  and  unfounded 
assumptions  of  power,  have  been  at  various  times  preferred  and 
abandoned ;  a  but  it  was  never  denied  that  the  wdsh  and  intention 
of  the  house,  was  still  to  act  fairly  and  equitably,  while  maintain- 
ing its  own  dignity  and  authority,  with  sometimes  a  little  undue 
jealousy  and  precipitancy, — and  an  excess  of  animation. 

On  the  other  hand,  the  great  anti-privilege  champion,  Lord 
Holt,  who  made  so  glorious  and  successful  a  stand,  though  almost 
unsupported,  in  Ashby  and  White,  h  when  a  most  valued  right  of 

a  See  the  case  of  Floyd,  post ;  Admiral   Griffin's  Fishpond  case,  9  Ad.  and  EL 
14,  el  al.  ibid, 
b  17  L.  J.  714.— App.  3,  Hatsell. 

*  Qucere  iamen :  the  result  of  the  best  intentioned  endeavor  to  reconcile  these 
big  and  little  endians,  maybe  that  described  in  Alma: 
*'  Dear  Dick,  if  we  could  reconcile 
"  Old  Aristotle  with  Gassendus; 
"  How  many  would  admire  our  toil, 
"And  yet,  how  few  would  comprehend  us!" — Prior. 


PARTJAMENTARY  LAW   OF  I'HIVILEGE.  G19 

the  subject  was  in  danger  to  be  defeated  by  privilege,  (as  the  house 
of  commons  were  pleased  to  claim  it ;  resting  their  case  on  that 
untenable  ground,  rather  than  on  a  plausible  hypothesis  of  judica- 
ture) ;  who  most  luminously  laid  down  the  great  general  principles 
of  the  law,  and  based  it  upon  grounds  from  which  his  successors 
are  not  likely  .to  depart ;  who  reasoned  irresistibly,  that,  as  parlia- 
ment had  only  c ire imi scribed  powers,  if  it  exceeded  those,  it  must, 
like  every  one  else,  that  has  exceeded  his  powers,  be  corrected. 

"  When  Paty  was  brought  up  on  habeas  corpus,  and  the  cause 
shown,  was  commitment  for  a  certain  act  which  the  house  voted  a 
contempt,  the  chief  justice  stood  alone  and  dissented  from  all  the 
other  judges,  who  held  that  the  prisoner  must  be  remanded ;  a 
thus  resisting  the  authority  of  Shaftesbury's  case,  who  was  com- 
mitted "  for  high  contempts"  of  the  house  of  lords,  without  show- 
ing when, — where, — or  how,  committed  ;  h  an  authority  to  which 
Lord  Chief  Justice  De  Grey,  Lord  Elicnborough,  and  Lord  Den- 
man  himself,  with  all  the  judges  of  our  times,  have  (it  maybe  with 
reluctance  in  some  instances),  conformed.  For  the  power  of  com- 
mitment for  a  contempt,  must  belong  to  every  legislative  and 
judicial  body.  And  when  it  appears  that  the  house  has  adjudged 
the  offence  to  be  a  contempt,  the  com-t,  it  is  said,  is  bound  to  give 
credence  to  that  determination.  If  the  house  professes  to  commit 
for  a  contempt,  and  the  commitment  is  in  a  general  form,  the  con- 
tempt cannot  be  inquu-ed  into :  "  the  adjudication  is  a  con^^ction, 
and  the  commitment  in  consequence  an  execution."  To  prevent 
a  conflict  of  jurisdictions,  no  coiu't  can  discharge  a  person  in  exe- 
cution by  the  judgment  of  another  court  of  competent  jurisdiction. 
A  court,  ■which  is  not  a  court  of  error  or  appeal,  cannot  entertain 
the  question  whether  the  authority  has  been  properly  exercised 
in  another  court,  c  Lord  Holt,  indeed,  did  not  question  the  power 
of  commitment  in  the  house  of  commons  in  Paty's  case ;  but  he 
thought  the  warrant  itseK,  in  that  case,  showed  an  excess  of  juris- 
diction ;  and  so,  left  his  opinion  not  irreconcileablo  with  Shaftes- 
bury's case,  which  has  always  been  supported  and  followed,  where 
the  commitment  was  in  a  general  form. 

a  Lord  Ray,  llOo,  3  Wils.  205. 
&  6  Howell's  St.  Trials,  1269. 
c  5  Dow.  199. 


620  PAELIAMENTAEY  LAW  OF  PRIYILEGE. 

But  if,  instead  of  a  commitment  in  a  general  form,  a  return  were 
to  shew  a  cause  whicli  could  not  by  auy  possibility  be  construed, 
agreeably  to  sound  reason  and  natural  justice,  to  amount  to  a 
breach  of  privilege  ;  "  if  there  were  on  the  face  of  the  warrant 
itself  evidence  of  an  abscence  of  contempt,  Lord  EUenborough 
plainly  intimated  in  Burdett  v.  Abbott,  that  in  such  cp,se  the  court 
would  "  do  its  duty."  a  He  had  before,  in  the  same  case,  repudia- 
ted the  doctrine  that  where  a  contempt  was  charged,  the  court 
would  not  look  at  a  warrant  and  judge  of  its  formal  sufficiency  ; 
though  he  certamly  gave  full  effect  to  the  doctrine  in  Shaftsbury's 
case. 

It  will  not  be  denied  tliat  whatever  the  strict  law  may  be,  (and 
that  cannot  be  questioned  after  the  decision  of  Burdett  v. 
Abbott,  in  the  house  of  lords  h  ;)  yet,  agreeably  to  natural  justice, 
the  imputed  offence  should  always  appear  on  the  face  of  the  war- 
rant sent  with  the  prisoner,  in  order  that,  as  well  expressed  by 
Chief  Justice  Yaughan,  in  Bushell's  case,  "  the  cause  of  commit- 
ment should  appear  as  plainly  to  the  court  before  which  the  com- 
mitment is  returned,  as  to  the  court  who  made  the  commitment."  c 
When  the  Lord  Chancellor  for  the  time  being,  committed  a  member 
of  the  house  of  commons,  (Mr.  Lechmere  Charlton,)  for  a  con- 
tempt, the  committee  appointed  by  the  house  to  inquire  into  that 
case,  called  for  the  particulars  of  his  contempt ;  and  rightly  so, 
to  enable  them  to  judge  whether  they  were  really  such  as  to  war- 
rant his  commitment,  d  But  after  the  house  of  commons  had 
imprisoned  the  sheriff  of  Middlesex,  for  executing  the  process  of 
the  court  of  which  W.  E.  and  J.  W.  were  the  officers,  the  house 
was  persuaded  to  make  a  return  to  a  writ  of  habeas  corpus,  not 
shewing  "  the  particulars  of  the  contempt,"  to  enable  the  court  of 
law  to  judge  of  its  sufficiency."  e 

a  14  East,  1.  d  Pari.  Eep.  1837,  No.  45. 

h  5  Dow,  199.  e  11  Ad.  and  El.  273. 

c  Vaughan,  137. 

*  See  1  Hargrave's  Juridcial  Argumeuts,  as  to  "  reconsidering  this  doctrine  of 
the  unappealable  and  unoxaminable  nature  of  commitment  for  contempt."  He 
puts  the  case  of  the  lords  sentencing  a  person  to  work  in  Bridewell  for  his  life,  as 
was  actually  done  by  the  lords  in  1684  ;  and  supposes  it  to  be  for  suing  out  a  writ  of 
habeas  corpus  to  examine  the  legality  of  a  former  commitment  by  the  lords.  But 
does  not  say  how  that  is  to  appear  ! 


PARLIAMENTAKY  LAW   OF  PRIYILEGE.  I?J1 

Now  this  was  not  "  doing  as  they  had  been  done  unto ;"  it  was 
not  agre'eable  to  morals  or  religion,  according  to  Tally  or  Saint 
Paul ;  but  the  attorney  general  was  just  able  to  say,  that  it  was 
"  according  to  law."  For,  where  care  is  taken  to  make  the  com- 
1  litment  general,  Lord  Shaftsbury's  case  stands  unimpeached ; 
aud  men  to  whom  the  bare  necessity  to  stand  sheltered  under  a 
technicality,  would  of  itself,  in  private  life,  excite  suspicion  that 
they  were  not  following  the  pure  and  high  line  of  conduct ;  who 
would  feel  that  there  was  something  abhorrent  from  a  frank  and 
loyal  nature,  in  withholding  any  part  of  the  truth  from  judicial 
inquiry ;  and  most  of  all  that  part  which  might  rescue  a  prisoner 
from  confinement ;  yet  acting  as  a  body  and  influenced  by  an  esprit 
de  corps,  the  same  men  are  carried  away  by  a  desire  of  victory, 
and  do  not  sufficiently  weigh  the  means  for  attaining  the  end. 
Others  little  comprehend  what  they  are  doing,  and  would,  if  com- 
petent to  judge  of  it,  be  very  much  ashamed  of  the  dexterity  by 
which  they  succeed.  "  It  would  be  unseemly,"  says  Lord  Denman, 
"  to  suspect  that  a  body  acting  under  such  sanctions  as  a  house 
of  parliament,  would,  in  making  a  warrant  suppress  facts,  which 
lit'  disclosed,)  might  entitle  the  prisoner  committed  to  his  Hberty. 
Ti  they  ever  did  so  act,  I  am  persuaded  that  on  further  considera- 
tion they  would  repudiate  such  a  proceeding.  What  injustice 
might  not  have  been  committed  in  past  times  if  such  a  course  had 
been  recognized ;  as.  for  instance,  if  the  recorder  of  London,  in 
Bushell's  case,  had  in  the  warrant  of  commitment  suppressed  the 
fact,  that  the  jury  were  imprisoned  for  returning  a  verdict  of  ac- 
quittal. I  am  certain  that  such  will  never  become  the  practice  of 
any  body  of  men  amenable  to  pubHc  opinion.  In  Brass  Crosby, 
Burdett's  and  Hobhouse's  cases,  words  were  used  shewing  the 
nature  of  the  contempt."  a 

"Nevertheless,  though  the  judges  in  this  case  perceived  and  re- 
gretted the  siippressio  vert,  and  fully  appreciated  the  motive,  they 
did  not  swerve  from  their  line  of  duty.  In  this,  the  strongest  pos- 
tible  case,  where  it  was  notorious  that  the  prisoners  were  then*  o"wn 
officers,  commtted  whilst  acting  in  the  lawful  execution  of  the 
process  of  the  court,  the  judges  of  the  coui't  of  queen's  bench, 
finding  the  warrant  general  in  form,  acted  upon  the  doctrine  of 
a  11  Adolphus  and  Ellis,  p.  292. 


G22  PAEUAMENTAEY  LAW  OF  PERTLEGE. 

Sliaftsbury's  case,  and  remanded  the  prisoners.  The  same  a  course 
had  been  taken  by  the  judges  of  each  of  the  other  courts,  in  simi- 
lar cases.  And  as  the  courts  of  law,  have  thus  been  conspicuously, 
and  most  creditably  seen,  in  the  case  of  their  own  officers  an-ested 
while  acting  in  obedience  to  the  rules  of  the  court,  to  lay  aside  all 
personal  feehngs,  (prejudice  and  passion  enter  not  into  the  elements 
of  justice)  ;  and  to  act  only  upon  the  circumscribed  views  of  the 
law  ;  so  may  the  parliament,  before  a  long  time  has  elapsed,  not 
only  be  found  to  repose  full  confidence  in  the  integrity  of  the  judges, 
submitting  their  privileges  fearlessly  to  their  upright  decision ; 
but  will  probably  also  be  seen  vieing  with  the  courts  of  law  in 
forbearance  and  self-control.  Then  may  they  be  found  to  mag- 
nanimously renounce,  to  spontaneously  divest  themselves  of,  so 
fiightfid  a  power,  (amountmg  to  a  virtual  repeal  of  the  liabeas 
corjms  act) ;  *  as  the  use  of  commitments  in  a  general  form. 

General  warrants  they  will  not  permit  to  the  crown,  even  in 
cases  of  high  treason  and  rebellion  ;  and  in  calmer  times  they  may 
renounce  them,  when  they  are  themselves  engaged  in  a  squabble 
with  a  bookseller  or  an  attorney.  They  may  becomethemselves  de- 
sirous, (as  they  will  never  wish  to  posess  any  privileges  which  are 
not  just  in  themselves,  essentially  necessary  to  the  discharge  of 
their  important  functions,  and  really  beneficial  to  the  community) ; 
that  their  claims  of  privilege  may  stand  the  test  of  forensic  inquiry, 
and  receive  the  added  sanction  of  the  highest  judicial  authority. 
This  would,  at  least,  be  a  recommendation  of  their  exclustve  privi- 
leges to  the  people,  and  might  conduce  to  a  better  feelmg,  both  as 
regards  the  use  of  privilege  and  the  interference  with  the  admin- 
istration of  justice,  than  at  present  exists." 

When  the  course  of  justice  is  allotved  to  foio  unimpeded,  decisions 
are  seldom  unsatisfactory.  Whenever  the  parliament  has  stopped,  or 
tried  to  stop,  actions  at  laiv,  menaced  suitors  and  witnesses,   and  in- 

a  C.  P.  in  Crosby's  case,  3  Wils.  203;  Exchequer  in  Oliver's  case;  cases  of 
Murray,  Burdett,  and  Hobhouse,  in  K.  B. 

*  In  1704,  the  lords  resolved  that  "  every  Englishman,  who  is  imprisoned  by 
any  authority  whatever,  has  an  undoubted  right  to  a  writ  of  hahean  corpus,  in  order 
to  procure  his  liberty  by  due  course  of  law."  The  law  of  commitment  for  contempt, 
says,  according  to  Hargrave  :  "You  shall  have  a  habeas  corpus  ;  but  it  shall 
answer  no  purpose  to  you  ;  for,  however  illegal  the  commitment,  the  judges  shall 
not  be  permitted  to  set  you  at  liberty." — Juridical  Argumerds,  p.  14. 


PARLIAiEEXTAKY  L.VW   OF  PRRTLEGE.  G23 

terrupted  tJi£.  regular  acJ ministration  of  Justice  in  the  due  course  of 
lata,  it  lias  never  been  icilh  advantage  to  the  charader,  or  authority, 
or  dignity  of  parliament.  It  has  always  been  viewed  by  the  coun- 
try in  the  light  in  which  it  is  placed  by  the  resolution  of  the  lords 
in  Paty's  case  ;  "  That  the  deterring  parties  from  prosecutuig  ac- 
tions in  the  ordinary  course  of  law,  and  tenifying  attorneys,  solici- 
tors, counsellors  and  serjeants-at-law  from  soliciting,  prosecuting, 
and  pleading  in  such  cases,  by  votmg  their  so  doing  to  be  a  breach 
of  the  privileges  of  the  house  of  commons,  is  a  manifest  assuming 
a  power  to  control  the  law,  to  hinder  the  course  of  justice,  and 
subject  the  property  of  Englishmen  to  the  arbitrary  votes  of  the 
house  of  commons."  a 

"  In  vain  has  the  house  of  commons  attempted  to  place  its  pri-\'i- 
leges  on  the  foot  of  unquestionable  and  unlimited  pQwer.  "  The 
court  of  queen's  bench  decided  in  Stockdale  and  Hansard,  h  that 
thsre  was  no  power  in  this  country  above  being  questioned  by 
law  ;  and  I  abide  by  that  judgment,"  said  Lord  Denman.  c 

May  exact  boundaries  be  ascertained  and  solid  principles  estab- 
lished ;  may  the  parliament  and  the  law  flomish  in-espective  of 
i  iicli  other ;  yet  each  lending  to  the  other  its  separate  support  and 
sanction  !  In  the  unavoidable  conflict  of  laws  and  jurisdictions, 
may  the  general  law  of  the  whole  empire,  the  superintending,  con- 
trolling common  law,  prevail  in  the  first  instance,  but  subject  to 
revision  in  ascending  courts  of  error  ;  ever  remembering  that  the 
real,  ultimate,  last  resort  of  judicature  is,  in  the  whole  legislature 
of  kings,  lords,  and  commons,  to  correct  all  mistakes,  and  to  repair 
every  possible  wrong !" 

Privilege,  at  fii'st,  was  the  claim  generally  of  members  of  the 
high  court  of  parliament.  But  the  two  houses,  now  distinct 
branches  of  the  legislature,  must  be  taken  to  be  invested  with  all 
the  essential  privileges  which  antecedently  to  their  separation  be- 
longed to  the  aggi'egate  body  of  the  parliament,  so  far  at  least  as 
they  have  been  subsequently  evidenced  by  enjoyment.  Suppos- 
ing the  separate  existence  of  the  house  of  commons  to  have  begim 
only  in  the  49  Hen.  3,  or  at  some  other  period  within  the  time  of 
legal  memory ;  yet  if  the  parliament  itself,  in  any  anterior  form  of 

o  In  1702.  b  9  Adol.  &  El.  14. 

c  Case  of  the  Sheriflf  of  Middlesex,  11  Adol  aud  Ellis,  28G. 


024  PAELIAMENTARY  I^VW  OF  PEIVILEGE. 

iis  existence,  be  of  prescriptive  antiquity,  (about  which  no  reason- 
able doubt  can  be  entertained) ;  the  same  privileges  then  en- 
joyed by  it,  may  be  presciibed  for  by  parliament,  in  the  fomi  into 
^vhich  it  has  since  resolved  itself,  and  now  subsists,  a  It  will  fol- 
low that  privileges  claimed  by  the  house  of  commons,  if  evidenced 
by  enjoyment,  need  not  stiictly  be  prescribed  for. 

Since  the  10  Geo.  3,  c.  50,  all  claim  of  protection  for  member's 
lands  and  goods,  h  and  all  privileges  of  domestics,  being  by  that 
statute  taken  away,  and  all  other  privileges  which  obstruct  the 
ordinary  course  of  justice  being  abolished,  the  privileges  of  speech 
and  of  person  are  the  most  familiar  of  those  which  remain  to  be 
considered.  The  principle  on  which  these  privileges  have  form- 
erly been  claimed  and  allowed,  is  thus  broadly,  and  somewhat 
diffusely  stated  : — "  As  it  is  an  essential  part  of  the  constitution  of 
every  court  of  judicature,  and  absolutely  necessary  for  the  due 
execution  of  its  powers,  that  persons  resorting  to  such  courts, 
whether  as  judges  or  as  parties,  should  be  entitled  to  certain  pri- 
vileges to  secure  them  rom  molestation  during  their  attendance  ; 
it  is  more  peculiarly  essential  to  the  court  of  parliament,  the  first 
and  highest  court  in  this  kingdom,  that  the  members  who  com- 
pose it  should  not  be  prevented  by  trifling  interruptions  from  their 
attendance  on  this  important  duty,  but  should,  lor  a  certain  time, 
be  excused  from  obeying  any  other  call,  not  so  immediately  neces- 
sary for  the  gi-eat  services  of  the  nation."  c 

"  But  this  privilege,  so  essential  to  the  very  existence  of  a  fi'ee 
council,  so  freely  exercised  under  Edward  III  and  Henry  IV,  and 
so  constantly  demanded  as  of  right,  by  every  successive  speaker 
posterior  to  33  Hen.  8,  was  frequently  caviUed  at  by  the  courtiers 
of  the  reigns  of  Queen  Mary  and  Queen  Ehzabeth,  as  intrenching 
upon  the  royal  prerogative,  and  the  house,  it  must  be  owned,  in 
part,  perhaps,  fi-om  gallantry  towards  queens,  acquiesced  in  gen- 
eral too  easily  in  these  doctrines.  "  It  was  reserved,"  (so  Mr. 
HatsellcZ  excellently  expresses  a  generous  sentiment)  "for  a  more 
enlightened  age,  and  for  times  when  the  true  spirit  of  liberty 
should  be  better  understood,  to  ascertain  and  establish  this  privi- 

a  Lord  Ellenborough,  Burdelt  and  Abbott,  l-i  East.  140. 

h  2  Hats.  217;  5  T.  R.  686. 

c  1  Hats.  1,  2.  d  1  Hats.  126. 


PARLIAMENTARY  LAW   OF  rRRTLEGE.  C25 

lege  iu  its  utmost  extent,  consistently  Avitli  the  lauj^niagc  of  good- 
breeding,  and  the  behavior  of  men  of  liberal  education." 

Nevertlieless,  this  alannmg  power  of  committmg  members  for 
a  supposed  breach  of  the  prerogative  by  their  speeches  in  the 
house  of  commons,  continued  to  be  exercised  by  the  ministers  of 
the  crown  in  the  succeeding  reigns,  a 

Of  the  several  instances  that  follow,  the  case  of  Sir  Edwyn 
Sandys,  in  1C21,  is  on  many  accounts  the  most  memorable ;  but 
chieHy  so,  because  it  produced  the  famous  "  Protestation"  in  vm- 
dication  of  the  rights  and  privileges  of  the  house,  which  occasioned 
the  immediate  dissolution  of  that  parhament.  b 

The  king  having  written  to  the  house  of  commons,  "  We  cannot 
allow  of  your  style— calling  it  'your  ancient  and  undoubted  right 
and  inheritance,'— but  could  rather  have  wished  that  you  had  said 
that  your  privileges  were  derived  from  the  gi-ace  and  permission 
of  our  ancestors  and  us ;"  a  committee  of  the  whole  house  was 
appointed  to  meet  the  next  morning,  "  to  consider  all  things  in- 
cident to,  or  concerning,  the  privileges  of  the  house ;"  and  having 
met,  with  the  assistance  of  Sir  Edward  Coke,  Mr.  Noy,  and  Mr. 
Glauville,  prepared  the  celebrated  protest : 

"  That  the  liberties,  franchises,  privileges  and  jurisdictions  of 
parhament,  are  the  ancient  and  undoubted  birthright  and  inheri- 
tance of  the  subjects  of  England ;  and  that  the  arduous  and  urgent 
affairs  concerning  the  king,  the  state,  and  the  defence  of  the 
realm,  and  of  the  Church  of  England,  and  the  making  and  main- 
tenance of  laws,  and  redress  of  mischiefs  and  giievances  which 
daily  happen  within  this  realm,  are  proper  subjects  and  matters 
of  counsel  and  debate  in  parhament ;  and  that  in  the  handling  and 
proceedings  of  those  businesses,  every  member  of  the  house  hath, 
and  of  right  ought  to  have,  freedom  of  speech  to  propound,  treat, 
reason,  and  bring  to  conclusion  the  same ;"  which  having  been 
read  several  times,  was  allowed  and  ordered  to  be  entered  of  record 
iu  the  journal  of  the  house ;  and  which  (though  the  king,  by 
^'  sending  for  the  journal,  and  striking  out  the  entry  with  his  own 
hand,"  was  in  hopes  to  have  obliterated  all  traces  of),  is  still  pre- 

a  D'Ewes,  410;  Cases  of  Cope,  Wentworth,  auJ  others. 
b  1  Hats.  Free.  137. 

79 


G2G  PAEUAMENTAEY  LAW   OF  rERTLEGE. 

served,  and  will  a  for  ever  remain,  a  memorial  of  the  true  spirit 
and  firmness,  the  temper,  moderation,  and  wisdom,  of  the  great 
men  who  b  directed  the  councils  of  that  parhament,  and  of  whom 
several  of  the  principal,  will  be  foimd  to  have  belonged  to  the 
liberal  as  well  as  learned  profession  of  the  law. 

Indeed,  it  is  to  the  sagacity,  research,  prudence,  skill,  and  above 
all,  to  the  courage  of  the  lawyers  of  that  period,  that  this  country- 
is  almost  entirely  indebted  for  possessing  its  present  perfection  of 
civil  liberty.  Whitelocke  truly  said,  that  "those  in  power  had 
most  occasion  to  be  displeased  with  this  profession,  as  a  bridle  to 
their  power."  "W^hen  Wolsey  went  with  state  and  pomp  to  the 
house  of  commons,  to  overawe  the  house  into  the  grant  of  a  par- 
liamentary aid,  who  was  it  that  had  the  firmness  to  tell  him,  "  that 
his  manner  of  coming  thither  was  neither  expedient,  nor  agreeable 
to  the  ancient  hberties  of  that  house?"  c — who  framed  the  petition 
of  rights  ? — to  whom  are  we  principally  indebted  for  the  bill  -of 
rights  ? — who  unavailingly  advised  proper  terms  and  conditions, 
with  due  limitations,  upon  the  power  of  the  crown  at  the  restora- 
tion ? — to  whom  do  we  chiefly  owe  the  principles  estabhshed  at 
the  revolution  ?  d — Fortescue,  Sir  Thomas  Moore,  Coke,  Selden, 
Hale,  Somers,  Whitelocke,  are  all  names  gloriously  distinguished 
for  services  to  the  national  freedom.  Other  bright  names  have  a 
different  praise, — Bacon,  Clarendon,  &c. 

It  is  observable,  that  in  all  these  cases  it  was  pretended  by  the 
ministers,  that  such  commitments  were  not  for  any  hberties  taken 
in  speeches,  but  for  offences  of  another  sort  committed  out  of 
parliament;  "  well  knowing,"  says  Hatsell,  "  that  if  the  parliament 
could  be  deluded  by  these  pretences,  their  end  would  be  equally 
attained.  If  this  claim,  set  up  by  James  I,  and  Charles  I,  to  im- 
prison the  members  of  either  house,  at  any  time,  and  under  any 
pretence,  could  have  been  established,  it  would  have  made  no  in- 
considerable part  of  that  system  of  prerogative  government,  which 
they  were  so  desirous  of  erecting." 

The  great  case  of  Sir  John  Elliott,  Holies  and  Valentine,  in 
which  the  judgment  proceeded  upon  the  mistaken  ground  that  the 

a  1  Hats.  138.  c  3  Hats.  1;  Sir  Thomas  Moore,  Speaker. 

h  Pari.  Hist.  Vol.  5.  d  See  Amos's  Fortescue,  passim. 


PAKLIAMENTABY  L.VW  OF  PRrVILEGE.  C27 

act  in  Stiodo's  case,  was  a  private  act,  was  a  prosecution  of  those 
members  for  their  conduct  in  parhament ;  a  when  the  house  of 
commons  asserted  "  their  indubitable  and  essential  right  of  free- 
dom of  speech,  and  personal  freedom  of  their  members,"  and 
refused  to  proceed  to  any  business  till  their  members  were  restored 
to  them. 

"  The  last  violent  and  fatal  step  taken  by  that  misguided 
monarch  (!)  (Charles  I),  which  was  subversive  of  every  idea  of 
privilege  in  the  house  of  commons,  and  precluded  all  hope  of  re- 
conciliation with  his  parliament  and  people,  was  the  going  in 
person  and  endeavorhig  to  seize  the  members  whose  freedom  of 
speech  had  displeased  him."  b 

The  judgment  against  Elliott,  Holies,  etc.,  was  revei-sed  by  the 
house  of  lords,  in  April  1G68,  after  the  restoration ;  and  Strode's 
Act  was  resolved  by  both  houses  of  parliament  to  be  a  general  law. 

By  the  Bill  of  Blights,  it  was  expressly  and  legislatively  declared, 
at  thfe  revolution,  as  one  of  the  fundamental  liberties  of  the  people ; 
-'  that  the  fi'eedom  of  speech  and  debates  and  proceedings  in  par- 
liament, ought  not  to  be  impeached  or  questioned  in  any  court  or 
[)lace  out  of  parliament."  c 

"  Tlie  instances  of  serious  invasion  of  this  indispensible  pri-silege 
l)rincipally  occur  where  they  were  chiefly  to  be  apprehended,  from 
the  power  of  the  crown.  Interference  on  the  part  of  the  executive 
would  naturally  be  regarded  with  greater  jealousy  than  any  stupid 
contempt  or  perverse  obstructions  from  other  quarters.  Still  there 
can  be  no  reasonable  doubt  that  any  attack  or  reflection  from  any 
other  quarter,  either  upon  the  house  collectively,  or  upon  the 
members  who  compose  it,  as  individuals ;  for  any  motion,  debate, 
question,  resolution,  statement  made,  or  decision  come  to,  in  the 
regular  course  of  parliamentary  proceedings,  would  be  \-isited  with 
censure  and  punishment,  as  involving  an  undoubted  breach  of 
useful  privilege.  Accordingly,  in  an  d  instance  (not  perhaps  a 
very  discreet  one,)  in  1559,  Frower,  a  seiTant  of  the  master  of  the 
lolls,  was  ordered  to  attend  to  answer  to  certain  evil  words  s2")oken 

(I  See  9  Com.  J.  25;  12  L.  J.  1G6,  that  this  was  au  illegal  judgment  and  against 
the  freedom  and  privilege  of  parliament. 
b  1  Hats,  ad  fin.  c  1  "Wm.  and  Mary,  s.  2,  c.  2. 

d  1  Hats.   19-1. 


G28  rAKLLiMENTATvl  IA.Vf  OF  rrvRTLEGE. 

by  Lim  against  the  house,  saying,  "  That  if  a  bill  were  brought  in 
for  womens'  wyers  in  their  pastes,  they  would  dispute  it,  and  go 
to  the  question ."  for  which  offence,  though  be  denied  the  words, 
he  was  committed  to  the  Serjeant's  keeping. 

27  Eliz.  1584,  John  Bland,  a  currier,  for  making  dishonorable 
reflections  on  the  house  of  commons  was  brought  to  the  bar,  and 
pardoned  on  his  submission ;  paying  twenty  shilUngs  fee  to  the 
Serjeant,  and  taking  the  oath  of  supremacy. 

Eeflections  on  the  speeches  and  conduct  of  members,  assaults 
upon,  or  menaces  to  members,  on  account  of  their  behavior  in  par- 
Hament,  have  been  frequently  resented  as  indignities  to  the  house 
itself. 

12  Feb.  18.  Jac.  1.  Mr.  Lovel,  a  member  of  the  house,  informed 
it,  "  That  one  Darryel  threatened  his  person  that  for  a  speech 
spoken  by  him  in  the  house,  he  should  be  sent  to  the  tower  during 
the  parhament,  or  immediately  after."  Darryel  was  committed 
to  the  Serjeant  till  the  Saturday  following,  and  then  to  acknowledge 
his  fault,  or  be  committed  to  the  tower." 

But  though  a  member  of  parliament  has  privilege  of  speech  in 
parhament,  and  may  speak  in  his  place  in  either  house  what  he 
thinks  material  or  useful,  whether  in  praise  or  in  censure  of  the 
conduct  of  others,  without  being  questioned  in  any  place  or  court 
out  of  parliament,  he  is  not  therefore  justified  in  publishing  what 
he  has  spoken,  if  it  contain  matter  injurious  to  the  character  of  an 
individual.  In  the  former  case,  in  his  character  of  a  a  member  of 
parliament,  he  is  protected ;  but  if,  unauthorized  by  the  house,  he 
choses  to  publish  his  speech,  it  then  becomes  a  subject  of  common 
law  jurisdiction.  And  the  circumstances,  in  the  latter  case,  h  of 
its  being  accurate,  and  intended  to  correct  a  misrepresentation, 
will  not  make  him  less  amenable  to  the  common  law,  in  respect  of 
the  publication. 

As  regards  reports,  resolutions,  parliamentary  proceedings  and 
papers  printed,  (and  now  sold,)  by  the  authority  of  either  house 
of  parhament,  considerable  doubt  was  hitherto  entertained  by  the 
most  competent  persons,  what  should  be  the  proper  rule. 

It  seems  unquestioned  that  the  courts  of  law  will  take  judicial 

a  K.  V.  Lord  Abinr,'(lon,  1  Esp.  N.  P.  C.  226. 
hJi.v.  Creevy,  1  M.  &  S.  273. 


TARLLVSIENTAnY   LAW   OF  riimLEGE.  C29 

notice  of  tliG  order  of  proceeding  in  parliament  and  in  conmiit- 
tees.a  Of  parliamentaxy  papers,  what  is  printed  for  the  ase  of 
the  membere,  ha<l  been  long  estabhshed  to  be  undoubtedly 
privileged. 

The  tu-st  case  that  occurs  as  to  the  publishing  ])arliamentary 
papers  of  a  defamatory  nature,  was  that  of  Lake  v.  King,  h  where 
certain  parhamentaiy  papers  had  been  printed,  which  aspersed 
the  cliaractcr  of  Sii-  Edwai'd  Lake.  The  defendant  justified  the 
libel  he  had  piinted,  by  pleading  that  it  was  only  printed  for  the 
use  of  members.  On  demun-er,  the  court  held  the  plea  good, 
because  it  was  the  order  and  course  of  proceeding  in  parliament, 
to  piint  and  deliver  copies  for  the  use  of  members,  whereof  the 
judges  ought  to  take  judicial  notice.  Lord  Hale  and  the  coiu't 
sustained  the  defence  ;  because  being  necessaiy  to  their  f imctions, 
it  was  the  course  to  print  pailiamentary  papers  for  the  use  of 
members.  And  the  judges  in  the  case  of  Stockdale  v.  Hansard,  c 
considered  the  line  drawn  in  this  case,  to  be  correct  in  law. 

A  criminal  information  was  refused  for  publLshing  the  report  of 
a  committee  of  the  house  of  commons,  which  contained  a  para- 
graph charging  an  individual  with  having  views  hostile  to  the  gov- 
ernment ;  after  he  had  been  tiied  for  treason  and  acquitted ;  on 
the  ground,  that  a  proceeding  in  parliament  could  not  be  deemed 
Kbelous.  d  In  a  latter  case,  e  Lord  Ellenborough  expressed  an 
inclination  to  lay  down  the  doctrine  with  somewhat  more  of  limi- 
tation, than  was  to  be  found  in  that  case. 

The  recent  and  leading  case  of  Stockdale  v.  Hansard,  was  an 
action  brought  against  the  printer  of  the  house  of  commons  for  a 
libel  contained  in  a  parliamentary  publication.  The  defendant 
justified  his  publication  by  the  supposed  privileges  of  the  house 
to  publish  for  sale  such  papers,  though  containing  defamatory  mat- 
ter. The  house  resolved  that  it  actually  possessed  the  power. 
The  judges  of  the  coui-t  of  queen's  bench  admitted  that  if  such  a 
privilege  did  exist,  it  would  protect  the  printer,  but  held  that  such 
privilege  did  not  exist,  and  that  the  resolution  of  the  house  would 
not  create  it.     There  were,  and  still  are,  la-u-yers,  ■v\lio  hold  opiu- 

n  R.  V.  "Wrif^'bt,  8  T.  R.  283.  h  1  Sauiul.   131. 

c  9  Adol.  &  Ellis,  1.  J  8  Term  Rep.  iVS- 

e  R.  V.  Creevy,  1  M.  &  S.  276. 


630  RUILLUEENT.VEY  L.VW   OF  PEIVILEGE. 

ions  favorable  to  the  privilege  claimed  in  this  case,  and  they  may 
have  been  founded  in  such  doctrine  ;  but  that  the  judges  uprightly 
discharged  their  duty  in  entertaining  the  inquuy, — amvmg  at,  and 
acting  upon  a  conviction  of  their  ovai, — instead  of  yielding  to  a 
resolution  of  the  house  of  commons,  cannot  admit  of  a  reasonable 
doubt.  And,  as  no  writ  of  error  was  brought  upon  the  judgment, 
it  must  now  be  taken,  that  the  privilege  did  not  exist  *  It  is  un- 
necessary to  enter  more  fully  into  Stockdale's  case  in  this  place, 
because  by  statute  3  Yict.  c.  9,  s.  3,  "  An  act  to  give  summary  pro- 
tection to  persons  employed  in  the  publication  of  parliamentary 
papers" — it  is  provided  that  proceedings,  criminal  or  civil,  against 
persons  for  pubHcation  of  reports,  papers,  proceedings,  (fee,  printed 
by  order  of  parhament,  may  be  stayed  upon  dehvery  of  a  certifi- 
cite  under  the  hands  of  the  chancellor  or  deputy  speaker  of  the 
lords,  or  speaker  or  clerk  of  the  house  of  commons,  to  the  effect 
that  such  pubUcation  was  by  order  of  either  house  of  parliament." 

Although  the  act  passed  in  Strode's  case,  4  Henry  8,  provides 
for  the  personal  immunity  and  protection  of  the  members  them- 
selves, for  speeches  made  or  acts  done,  in  parliament  or  concern- 
ing the  same  ;  this  does  not  regard  what  Lord  Ellenborough  termed 
the  vindictive  privileges  of  the  house  for  offences  done  against  the 
body  of  the  house  generally,  in  breach  of  the  rights  and  privilege 
of  the  whole  house,  a  Wliilst  a  member  may  not  be  questioned 
out  of  parliament  for  any  expressions  he  may  have  used  in  debate, 
he  is  hable  to  censure  and  punishment  by  the  house  itself,  of  which 
he  is  a  member.  And  instances  have  occurred,  of  members  hav- 
ing been  imprisoned  and  even  expelled,  for  offensive  language  and 
indignities  to  the  house,  and  disobedience  to  its  orders. 

Thus  in  1580,  Arthur  Hall,  a  member  of  the  house  of  commons,  h 
was  punished  for  a  libel  on  the  dignity  of  the  house,  by  bemg  com- 
mitted and  expelled.  In  c  more  recent  cases,  the  judges  of  the 
court  of  king's  bench  were  unanimously  of  opinion  that  the  house 
of  commons  has  the  power  of  commitment  of  a  member  for  a 
breach  of  their  privileges.  In  Hobhouse's  case,  the  house  of  com- 
mons havmg  voted  the  defendant  guilty  of  a  breach  of  theur  privi- 

a  E.  V.  Flower,  8  T.  K,  31-1.  l>  D'Ewes  Journal,  291. 

c  Burdett  v.  Abbott,  14  East,  1. 

*  This  case  was  cited  as  the  law  of  legislative  privilege  by  Senator  Sumner,  in 
his  great  speech  on  that  subject  27th  May,  1871. 


rARLIAJJENTAllY  LAW   OF  I'KrraXGE.  G31 

leges  for  publishing  a  libel  upon  tlic  house,  aiuUiaviDg  orjired  liim 
to  be  committed  to  Newgate  during  their  pleasure,  and  the  speak- 
er's waiTant  being  returned  into  the  court  of  king's  bench  upon  a 
habeas  corpus  sued  out  by  the  defendant,  the  court  refused  to  dis- 
charge him  out    of  custody,  a     "  It  was  necessary,"  says  Lord 
Ellenborough,  in  the  former  of   the  cases  refen-ed  to,  h  "  that 
members  (of  the  high  court  of  parliament  generally)  should  have 
the  most  complete  personal  security  to  enable  them  freely  to  meet 
for  the  purpose  of  discharging  their  important  functions,  and  also 
that  they  should  have  the  right  of  sdf -protection,  I  do  not  mean 
merely  against  acts  of  individual  A\Tong ;  for  poor  and  impotent 
indeed  would  bo  the  privileges  of  parliament,  if  they  could  not  also 
protect  themselves  against  injuries  and  affronts  offered  to  the  ag- 
gregate body,  which  might  prevent  or  impede  the  fuU  and  effectual 
exercise  of  their  parliamentaiy  functions.     This  is  a  right  essen- 
tially inherent  in  the  supreme  legislature  of  the  kingdom.     Can 
the  high  court  of  parliament,  or  either  of  the  two  houses  of  wliich 
it  consists,  be  deemed  not  to  possess  intrinsically  that  authority  of 
prosecuting  summarily  for  contempts,  which  is  aclcnowledged  as 
belonging  to  every  superior  court  of  law  of  less  dignity,  undoubt- 
edly, than  itself  ?     And  is  not  the  degradation  and  disparagement 
of  the  two  houses  in  the  estimation  of  the  public,  by  contemptu- 
ous libels,  as  much  an  unpediment  to  their  efficient  acting  with 
regard  to  the  pubHc,  as  the  actual  obstraction  of  an  individual 
member  by  bodily  force,  in  his  endeavour  to  resort  to  the  place 
where  parhament  is  holden  ? 

And  not  only  is  every  member  subject  to  the  censure  of  the 
house,  for  whatever  is  spoken  in  the  house,  but  for  every  other 
part  of  his  conduct,  c  In  1G2G,  Mr.  Moor  was  sent  to  the  tower 
for  speaking  out  of  season. 

Sir  WiUiam  "VMddrington  d  and  Sir  Herbert  Price  sent  to  the 
tower  for  bringing  in  candles,  against  the  desire  of  the  house. 

Mr.  Hugh  Benson,  e  a  member  of  the  house,  having  granted 
many  protections  for  money,  taking  for  some  sixteen,  seventeen, 
forty  shillings ;  resolved  upon  the  question,  that  ]Mr.  Hugh  Benson 

a  R.  V.  Hobhouse,  2  Chitty,  207.  6  Burdett  v.  AMiott,  11  Enst.  1. 

c  Nalson's  Introd.  Gl. 

d  2  Nalson,  272.  e  Ibid,  596. 


632  PAELIAJVIENTARY  LAW   OF  rEIYILEGE. 

is  unworthy  aud  unfit  to  be  a  member  of  this  house,  and  shall  sit 
no  longer  as  a  member  of  tliis  house. 

18  Eliz.  1575,  Edward  Smalley  was,  upon  the  question,  adjudged 
liy  the  house  to  be  guilty  of  contempt  and  of  abusing  the  house 
by  the  fraudulent  practice  of  procuring  liimself  to  be  arrested  upon 
execution  of  his  own  assent,  and  with  intention  to  be  discharged 
as  weU  as  of  his  imprisonment  as  of  his  said  execution.  Smalley, 
and  a  conspirator  with  him,  were  both  ordered  to  the  tower  ;  and 
the  said  Smalley  to  remain  there  for  a  month,  and  after  ;  till  he 
gave  sufiicient  assurance  for  payment  of  a  hundred  pounds  to  the 
creditor,  and  forty  shillings  for  the  Serjeant's  fees,  a 

The  next  petition  affecting  individual  members,  was  for  freedom 
from  arrest.  This  claim  also  was  never  made  until  of  late  years ; 
yet  "  this  privilege,"  says  Elsynge,  "  did  ever  belong  to  the  lords 
and  commons,  and  to  their  servants  also  coming  to  the  parliament, 
staying  there,  and  returning  home."  h  So  Hakewill  observes,  c  "  the 
petition  for  privilege  from  arrests  is  of  later  days ;"  but  notices 
that  Sir  J.  Cheny,  1  Hen.  4,  made  a  general  request  for  all  privi- 
leges, which  might  include  it.  And  in  Atwyll's  case,  17  Ed.  4,  the 
preamble  to  the  commons'  petition  confidently  asserts  the  "pryv- 
ylege,  that  euy  of  theym  shuld  not  be  empleded  in  any  action  per- 
sonell,  nor  be  attached  by  their  persone  or  goods,  in  their  comying 
to  any  such  parhament,  there  abydyug,  nor  fro  thence  to  their 
propre  home  resortyng ;  which  liberties  and  franchises  your  high- 
ness, by  your  auctorite  roiall,  at  commencement  of  tliis  parliament, 
graciously  have  ratified  and  confirmed  to  us,  your  said  comens ;" 
which  ratification  could  only  have  been  in  his  majesty's  answer  to 
the  speaker's  petition. 

The  privilege  itself,  of  freedom  from  an-est  in  civil  suits,  at 
whatever  time  first  formally  claimed,  was  certainly  always  exercised, 
and  must  have  been  coeval  with  the  existence  of  parhaments.  The 
exemption  from  arrests  was  considered  the  privilege,  generally,  of 
a  member  of  the  high  court  of  parliament ;  and  the  reason  given  for 
it  by  the  judges,  applies  equally  to  the  members  of  both  houses, 
vi2;.  "  That  they  may  have  their  freedom  and  liberty  freely,  to 
intende  upon  the  parhament."     Accordingly,  Hakewill  speaks  d 

a  Petj-t's  Miscel.  Pari.  IC,  18.  h  Elsynge,  184. 

c  Hakewill,  213.  d  Hakewill,  62. 


PARLIAMENTARY   LAW  OF  rRRTLEGE.  C33 

of  it  as  cstablisliod  paiiiamentiiry  hiw,  that  "  every  kiiii^lit,  eitizen, 
burgees,  baron  of  the  five  ports,  or  others,  called  iu  the  parliament 
of  the  kuig,  shall  have  priNilego  of  pai-hament  during  the  session 
of  parhament ;  so  that  he,  that  doth  aiTest  any  of  them  during  that 
time,  shall  be  unprisoned  in  the  tower,  by  the  nether  house,  of 
which  he  is,  and  shall  bo  put  to  his  fine  ;  a  and  the  keeper  also,  if 
he  will  not  deliver  hira  when  the  serjeant-at-anns  doth  come  for 
him,  <fcc.  And  all  the  prinleges  which  do  belong  to  those  of  the 
commons  house  of  parliament,  a  fortiori  do  appertain  to  all  the 
lords  of  the  np^x^r  house.  Their  persons  are  not  only  fre<3  from 
aiTest  during  the  parliament,  but  during  their  lives ;  nevertheless 
the  original  cause,  is  by  reason  they  have  voice  and  place  in  par- 
liament." Freedom  from  aiTest  of  peers,  however,  \\\\.\\  gi-eat  def- 
erence to  Mr.  Hidi:ewill,  (to  whom  I  am  gi-eatly  indebted,)  but 
whom  I  cannot  implicitly  follow  in  this  instance ;  being  the  prin- 
lege  of  peerage,  and  not  of  parliament,  h  extends  to  peers  not  mem- 
bers of  the  legislature  ;  viz.,  Scotch  and  Irish,  (and  formerly  to 
Koman  Cathohc  peers.)  The  person  of  a  peer  (by  the  pnA-ilege  of 
p  eerage)  is  ever  sacred  and  inviolable,  c  This  immunity  rests  upon 
ancient  custom,  and  is  recognized  by  statutes,  12  and  13  Wm.  3, 
c.  3,  and  2  and  3  Anne,  c.  18."^ 

The  principle,  that  attendance  in  parliament  ought  not  to  be 
interrupted  by  the  process  of  an  inferior  court  in  matters  of  civil 
jurisdiction,  being  admitted  in  the  earliest  times,  (an  instance  will 
be  shewn  in  9  Ed.  2,)  a  practice  founded  upon  it,  will  appear  uni- 
versally to  have  prevailed.  Possessing  a  power  that  was  never 
disputed,  for  the  prevention  of  arrest  or  the  enlargement  of  their 
members  by  wTit  of  privilege,  or  liaheas  corpus,  the  coui'se  of  the 
house  of  commons  seems  to  have  been,  to  provide  in  each  instance 
for  the  particular  case,  without  procuring  any  general  law  upon 
the  subject.  There  occur,  indeed,  in  the  parhiunentaiy  records, 
and  in  the  documents  brought  to  light  by  the  indefatigable  industry 
of  Prynne,  several  instances  of  petitions  presentetl  by  the  com- 
mons, praying  the  king  to  have  their  claims  in  this  respect  (and 
they  are  stated  as  appertaining  to  the  whole  parliament,  peers  as 
well  as  commons)  allowed  and  enforced  by  the  sanction  of  a  law  ; 
but  the  answer  was,  that  they  akeady  possessed  a  suflicieut  remedy. 

a  Dyer,  60.  b  2  Strange.  985.  r  1  Bl.  Comm.  lO". 

It  is  to  be  obear\-ed  these  ciises  arose  prior  to  the  stpt.  13  Wm.  Ill  4l3Geo.III 
80 


634  PAELIAJVEENTAEY  LAW  OF  rMTILEGE. 

The  present  inquiry  will  be  understood  to  be  of  necessity,  almost 
entirely  coniined  to  the  privileges  claimed  in  the  speaker's  prayer. 
And  thus  narrowed,  it  will  be  rendering  a  more  acceptable  service, 
to  present  the  reader  with  the  brief  result  of  the  cases,  than  to 
enter  into  any  more  labored  exposition  of  the  doctrine. 

In  the  great  case  of  Lord  Arundel,  who  had  been  imprisoned  by 
the  king,  in  1625,  the  lords  resolved  nem  con,  "  That  the  privilege 
of  tliis  house  is,  that  no  lord  of  parliament,  sitting  the  parliament, 
or  witliin  the  usual  time  of  pri^'ilege  of  parliament,  is  to  be  im- 
prisoned or  restrained,  without  sentence  or  order  of  the  house, 
unless  it  be  for  ti'eason,  felony,  or  for  refusing  to  give  surety  for 
the  peace."  a 

In  the  house  of  commons,  the  cases  of  Bogo  de  Clare,  18  Ed.  1, 
relating  to  the  service  of  a  citation  in  a  privileged  place  and  ex- 
empt jmisdiction  ;  and  of  John  de  Thoresby,  10  Ed.  3,  founded  on 
the  service  of  ecclesiastical  process  in  the  court  of  chancery; 
usually  fii'st  cited,  because  furnished  by  Sir  Edward  Coke  h  in  his 
fourth  institute,  were  thought  by  Prynne,  c  and  are  declared  by 
Sir  Orlando  Bridgeman  in  his  judgment  in  Benyon  v.  Evelyn, 
and  by  Lord  Ellenborough  in  Burdett  v.  Abbott,  to  have  no 
reference  to  the  privilege  of  parliament. 

The  fii'st  case  which  does  d  apply  is  the  prior  of  Malton's  case, 
9  Ed.  2,  and  it  seems  quite  conclusive  of  the  claim  ;  but  upon  that 
case  no  judgment  has  been  found.  The  original  e  writ  recites  the 
privilege  as  follows :  "  Frelatos,  comitcs,  harones  et  alios,  tarn  cleri- 
cos  quam  laicos,  in  veniendo  ad  eadem  parliamenta,  ibidem  onorando 
et  exinde  redeundo,  ah  omni-modis  injuriis,  oppressiordhus  et  grava- 
minihus,  nos  oporiet  protegere  et  titeri,"  &c. 

In  the  parliament,/  5  Hen.  4,  was  a  petition  from  the  commons 
to  the  king,  in  which  asserting  that  "  7ie  devoient  per  ascum  dette, 
accompt,  trespas  ou  autox  contrat  gconque  esfre  arester  oic  en  ascun 
manere  em'prisonez  en  le  meme  temps  ,•"  they  pray  the  king  "  to  make 
any  breach  of  such  privilege  punishable  by  fine  and  ransom  to 

a  Ajid  see.  in  the  same  year,  Feb.  9,  1625;  a  stay  of  proceedings  in  the  star 
chamber,  granted  to  the  Lord  Vaux,  on  the  ground  of  privilege,  3  L.  J.  496. 
h  4  Inst.  p.  24. 

c  Prv'nne's  Annimadv.  on  4  Inst.  20  Eeg.  38G. 
d  Elsj-nge,  186.  e  1  Hats,  13. 

/  Parliament  EolL  Vol.  3,  p.  541,  No.  71. 


rARLLVMENTARY  LAW   OF  ITJVILEGE.  C35 

himself,  aiul  treble  damages  to  the  party."  The  king  answers 
them,  "  Y  ad  sufficient  remede  en  le  cas."  That  suflicieut  remedy 
was,  says  Prynne,  their  enlargement  Ijy  writ  of  piivilege  or  habeas 
coi-jDUS,  whieh  the  hiAV  allowed  them,  in  such  eases,  if  not  in  exe- 
cution ;  whereby  the  plaintifl'  lost  the  benefit  of  his  arrest,  and  was 
put  to  the  charge  of  new  process,  kc.  But  in  Lark's  case,  8  Hen. 
0,  a  where  the  commons  prayed  not  only  a  special  redi-ess  in  the 
particular  case  in  the  discharge  of  their  member,  but  a  general 
recognition  ^  by  a  declaratory  law,  that  "  no  lords  nor  knights, 
citizens,  burgesses  or  others,  may  be  an-ested  or  detained  during 
the  time  of  parliament,  except  for  treason,  felony,  or  surety  of  the 
peace  ;"  the  kingc  refused  them,  giving  a  parliamentary  negative : 
"Ze  Roy  savlseray  The  house  of  lords,  in  their  answer  to  this 
case,  when  cited  by  the  attorney  general  in  Lord  iU'undel's  case, 
suppose  the  ground  of  this  negative  to  have  been,  that  the  latter 
part  of  the  bill  comprehended  more  than  it  was  at  that  time 
thought, fit,  the  royal  assent  should  be  given  to.  "There  is  no 
doubt  but  that  any  of  the  house  of  commons  being  detained  in 
prison  upon  an  execution  served  upon  them  before  the  time  of 
privilege  of  parliament,  or  being  in  execution  in  any  ordinary 
course  of  justice  before  that  time,  ought  to  be  detained  still,  as  is 
practised  at  this  day."  They  then  supposed  that  a  prisoner,  by 
being  chosen  a  member,  could  not  claim  to  be  discharged ;  now  a 
difierent  doctrine  prevails. 

There  was,  however,  in  the  case  of  Lark,  d  an  enactment,  by  the 
consent  of  the  plaintiff's  counsel,  for  the  discharge  of  Lark  out  of 
custody ;  but  there  was  also  a  saving  to  the  plaintiff  of  his  execu- 
tion, after  the  end  of  the  parliament,  and  of  the  fine  to  the  king 
for  the  trespass.  As  Sir  O.  Bridgeman  pithily  states  it :  "  There 
was  a  special  act  of  parliament  for  a  new  execution  and  by  a  new 
way  against  Lark,  but  the  king  refused  to  make  a  general  law  in 
it."  In  point  of  fact,  it  was  then,  and  long  after,  considered  doubt- 
fid  whether  privilege  of  parliament  extended  only  to  aiTests  on 
mesne  process,  or  to  executions  also.  And  accordingly  in  the 
next  case,  we  find  a  fourtji  limitation  added  to  the  former  except- 
ions ;  "  if  a  member  be  aiTested  in  such  cases  as  be  not  for  treason, 

a  Hot.  Tarl.  8  Hen.  6,  No.  57.  c  1  Hats.  20. 

h  Elsynge,  217.  d  Moor,  340;  5  T.  R.  362. 


636  PAELIAMENTAEY  LAW  OF  PEIYILEGE. 

felony,  surety  of  the  peace,  or  for  a  condempnation  liad  hefore  iJte 
parliament,  it  is  used  that  such  persons  be  released  of  such  arrests, 
and  make  an  attorney,"  being  the  instances  excepted  by  the  judges 
in  Thorpe's  case,  31  Hen.  6.  This  person,  who  was  a  baron  of  the 
exchequer  as  well  as  speaker  of  the  house  of  commons,  and  more- 
over a  Lancasterian,  had  been  imprisoned  during  a  prorogation, 
on  an  execution  at  the  suit  of  the  Duke  of  York.  The  commons, 
as  in  Lark's  case,  where  they  did  not  act  upon  the  claim  them- 
selves, but  submitted  jt  to  the  rest  of  the  parhament,  as  a  matter 
of  general  concern,  sent  some  of  their  members  to  complain  of  a 
violation  of  privilege  to  the  king  and  lords  in  parhament,  and  to 
demand  Thorpe's  release.  The  lords  referred  the  question  to  the 
judges,  who,  inter  alia,  stated  the  law  of  privilege  as  cited  above. 
Notwithstanding  this  answer  of  the  judges,  the  lords  determined 
that  Thorpe  should  remain  in  prison  and  directed  the  commons 
to  proceed  with  all  goodly  haste  and  speed  to  the  election  of  a 
new  speaker,  which  they  did  immediately. 

That,  after  the  formal  declaration  of  the  judges  upon  this  occa- 
sion, and  their  exact  enumeration  of  all  the  cases  excepted  out  of 
parliamentary  privilege,  the  lords  should  have  immediately  ad- 
judged that  Thorpe,  who  appeared  to  come  within  none  a  of  these 
descriptions,  should  according  to  law,  remain  stUl  in  prison,  while 
the  commons  cheerfully  acquiesced  in  this  decision,  and  imme- 
diately proceeded  to  the  choice  of  a  new  speaker,  has  created 
great  and  reasonable  surprise  and  well-founded  suspicion,  and 
occasioned  it  to  be  repeatedly  h  mentioned,  as  "  a  case  begot  from 
the  iniquity  of  the  times."  A  solution  of  .the  difficulty  is  furnished 
in  the  case  of  Hodges  *  v.  Moore,  1  Car.  1,  as  reported  by  Latch,  c 

a  Prynne,  4  Eeg.  810.  c  Latch.  15,  48,  150,  Noy.  83. 

h  First  by  Six  N.  Eich,  on  its  being  cited  in  debate,  March  1620. 

*  In  this  case,  Moore,  having  privilege  of  parliament,  procured  the  speaker, 
Sir.  H  Finch,  to  write  his  letter  in  the  name  of  the  parliament,  to  the  court  of 
king's  bench  to  stay  judgment.  The  court  was  greatly  offended  at  this  proceeding, 
(which  had  been  the  practice  for  a  century,)  and  it  is  said,  would  have  returned  a 
sharp  answer  to  the  parliament,  (if  it  had  not  been  dissolved);  "because  it  i.^s 
against  the  oaths  of  the  judges,"  &c.;  but  "  the  way  is  to  procure  a  supersedeas." 
They  also  referred  to  what  the  judges  said  in  Thorpe's  case,  that  "  there  is  no 
general  supersedeas  brought  to  surcease  all  process;  for  if  there  were,  then  this 
high  court  of  parliament  should  let  the  process  of  the  common  law,  and  so  should 
put  the  party  complainant  without  a  remedie." 


TAELLVMENTARY  LAW   OF  PRIVILEGE.  037 

Thorpe,  it  seems,  had  only  Sbfjemral  supcrsedc<xs  for  all  actions,  aud 
the  opinion  of  the  judges  being  taken,  tliat  was  held  ill ;  he  should 
have  had  a  ^xir/ic«Zaj'  ^crit  of  super sathxts  for  eacli  action.  Thus  a 
technical  gi-oiind,  however  naiTOW,  was  laid  for  this  tyranical  pro- 
ceeding. This  explanation,  moreover,  is  not  inconsistent  with  the 
account  afforded  by  Hake^vill,  a  who  says  that  Thorpe  was  arrested 
in  vacation,  and  lays  it  down  as  the  doctrine  of  his  time,  that  par- 
liament doth  not  give  privilege  tempore  vacationis  sed  sedente  curia 
only.  So  Elsj-ngc  h  is  reduced  to  the  supposition  that  the  judg- 
ment proceeded  on  the  gi'ound  that  the  expression  "  condempnation 
had  before  the  parliament,"  is  to  be  understood  of  such  arrests  as 
happen  in  the  interval  beto'een  the  adjournment  and  the  access. 
These  considerations,  if  they  do  not  remove  all  the  sus^^icion  that 
attaches  to  that  case,  will  in  some  degree  serve  to  explain  tlie 
proceedings  on  it,  and  the  judgment  eventually  given  by  the  par- 
liament The  lords,  adopting  the  ad\ice  of  the  judges,  disallow 
the  privilege  claimed,  because  Thorpe  had  only  a  general  sujjerse- 
deas,  and  not  a  particular  supersedeas  in  that  suit ;  and  because 
the  condemnation  was  "  before  the  parHament  began,"  being  during 
a  prorogation,  not  an  adjournment. ''' 

Clarke's  case,  39  Hen.  6,  and  Hyde's  case,  14  Ed.  4,  resemble 
Lark's  case  in  many  particulars,  all  three  members  being  taken 
in  execution,  and  it  being  thought  necessary,  in  each  case  respect- 
ively, to  have  an  act  of  parliament  to  save  to  the  plaintiff'  a  new 
execution  after  the  time  of  privilege :  and  they  vary  only,  in  its 
having  been  thought  necessary  or  expedient  in  the  latter  cases  to 
have  the  chancellor,  sheriffs,  and  warden  of  the  fleet  indemnified  ; 
"  Which,"  says  Hatsell,  "  induces  me  to  suspect  that  the  right 
such  persons  had  by  law  to  writs  of  privilege  and  Jtal>cas  corpus 
for  their  deliver}^  did  not  extend  to  cases  of  persons  imprisoned 
under  a  writ  of  execution." 

Two  years  previous  to  the  last  mentioned  case  of  Hyde,  occmTed 
the  case  of  Donne  v.  Walsh,  c  copied  by  Prynne  from  the  rec- 
ords in  the  court  of  exchequer.  It  was  a  demuiTer  to  a  plea  of 
^vlit  of  pri\dlege.     The  writ  recited  an  entire  privilege  of  the  lords 

a  Hftkewill,  63.  b  Elsynge,  217. 

c  i  Register,  752. 

•  It  appears  by  the  rolls  of  iiarliament,  that  it  was  then  prororpied. 


038  PAELIAMENTAEY  L.\W  OE  PKIYILEGE. 

aud  commons  not  to  be  imprisoned  or  impleaded  during  tlie  time 
of  parliament.  Tlie  barons,  ■s^itli  the  ad\ice  of  the  judges  of  both 
the  other  courts,  formally  declare  their  opinion  that  persons  enti- 
tled to  privilege,  "  ratione  aliciijus  transgressionis,  dehiii,  comjnUi, 
conventionis,  contractus  conjuscunqiie,  dum  sic  in  parliamento  Eegis 
mcyi-entur,  cadi  aid  arrestari  non  debent ;  sed  nullum  hujusmodi  con- 
suetudinem  fore,  quod  quin  implacitari  debent,  proict  in  hrevi  illo 
sujjonitur." 

There  is  a  similar  decision  of  the  same  court  of  exchequer  in 
EjYer  V.  Cosins,  the  same  year,  in  which  the  barons  repeated 
verhalim  then-  opinion  in  Walsh  v.  Donne  ;  yet,  in  Hyde's  case  a 
the  Idug's  bench  remanded  Mr.  Hyde  to  Newgate,  though  arrested 
in  a  civil  action  ;  and  the  house  of  commons,  in  a  subsequent  case, 
renewed  then-  claim  to  exemption  from  being  impleaded.  This 
was  in  Atwyll's  case,  17  Ed.  4,  &  in  which,  however,  the  plaintiffs 
execution  was  expressly  saved  to  him  after  the  end  of  the  parlia- 
ment ;  which  negatives  in  effect,  this  claim  of  exemption ;  "  The 
inference  c  is  strong.  The  act  of  parliament  did  aUow  the  foun- 
dation, and  proceeding,  and  judgment  against  Atwyll  a  member  of 
parhament,  during  the  parliament,  though  it  discharged  the 
execution." 

The  next  claim,  in  Sadcliffs  case,  1  Hen.  7,  omits  the  privilege 
of  not  being  impleaded  in  personal  actions,  wliich  had  been  so 
often  disallowed. 

The  last  case  which  relates  to  a  claim  of  privilege  "  not  to  be 
impleaded,"  is  of  much  later  date,  14  Car.  2,  and  is  only  stated 
here  by  anticipation,  to  prevent  the  necessity  of  a  recurrence  to 
the  subject.  In  the  case  of  Benyon  v.  Evelyn,  14  Car.  2,  Sir  Or- 
lando Bridegman  decided  that  the  privilege  of  parliament  which 
exempted  members  from  arrest,  did  not  prevent  an  original  being 
sued  out  or  prosecuted  against  a  member  during  the  sitting  of  par- 
liament. Tliis  is  the  case  in  which  Lord  C.  J.  Bridgeman  gave  so 
learned  and  elaborate  a  judgment,  worthy  of  his  common  law 
reputation ;  obscured,  not  extinguished,  ui  chancery.  It  was  an 
action  of  assumpsit  for  goods  sold  and  delivered  to  a  member  of 
parliament ;  the  defendant  pleaded  the  statute  of  limitations ;  the 

a  12  Ed.  4,  Rot.  7.  h  17  Ed.  4,  No.  35. 

c  Sir  0.  Bridgeman's  judgment  in  Benyon  v.  Evelyn. 


rAELLVMEXTAllY  L.VW   OF  rm\TLEGE.  C3'J 

plaintiff  replied  that  lie  could  not  sue  the  defendant  sooner,  because 
he  was  a  member  of  parliament  and  privilcf^cd  from  suits,  the  de- 
fendant denied  that  position,  and  said  that  though  membei-s  of 
parliament  cannot  bo  arrested,  they  may  be  sued.  The  learned 
judge  considered  himself  bound  to  decide  the  question  of  prinlege 
thus  brought  before  him,  lamenting  the  necessity.  Ho  says, 
"  When  in  a  common  action,  tho  privilege  of  parliament  doth  come 
to  be  part  of  the  plea  or  justification,  it  is  of  necessity  that  the 
privilege,  whether  there  be  such,  and  what  the  extent  of  it  is, 
come  also  into  consideration.  For  as  in  the  register  it  is  said  of 
the  ecclesiastical  court,  which  is  inferior  to  the  common  law,  if  a 
common  law  point  come  in  question  there,  non  est  consonum  rationi, 
quod  cognitio  accessarii  in  cousa  clivist'ianitatis  inipediatur,  uhi  cog- 
nitio  caiisce  princijoalis  ad  forum  ecdesiastici'.m  noscitur  pertinere  ; 
so  I  may  say  here,  the  privilege  of  parliament  coming  incidentally 
as  part  of  the  case,  as  a  consequent,  must,  in  this  particular  case, 
be  also  debated  hero."  The  decision  was  against  the  privilege 
claimed  :  that  is,  that  a  member  had  no  exemption  from  being 
sued  ;  though  such  a  privilege  had  been  frequently  claimed. 

Hitherto  it  has  been  seen,  that  when  a  member  or  his  servant 
has  been  imprisoned,  the  house  of  commons  have  never  proceeded 
to  deliver  such  person  out  of  custody  by  vhtue  of  their  own  au- 
thority ;  but  if  the  member  has  been  in  execution,  have  apphed 
for  an  act  of  parliament  to  enable  the  chancellor  to  issue  his  writ 
for  his  release  ;  or,  if  the  party  was  confined  only  on  mesne  pro- 
cess, he  has  been  delivered  by  his  -vmt  of  pri\'ilege,  which  he  was 
entitled  to  at  common  law.  The  truth  was,  a  says  Hallam,  that 
with  a  right  pretty  clearly  recognized,  as  is  admitted  by  the  judges 
in  Thorpe's  case,  the  house  of  commons  had  no  regular  compulsory 
process  at  their  command. 

In  34  Hen.  8,  Ferrer's  case  introduced  a  new  mode  of  proceed- 
ing in  this  particular.  Though  in  custody  in  execution  for  "  a 
condemnation  had  before  the  parliament,"  the  member  an-ested 
was  delivered,  *'  not  in  this  case,  by  virtue  of  an  act  of  parHament 
— not  by  any  writ  of  privilege,  but  by  the  serjeant-at-arms,  with- 
out any  other  wan-ant  than  his  mace  ;"  "Albeit  the  lord  chancellor 
oflered  them  to  gi-ant  a  writ."  Secondly,  the  parties  who  opposed 
a  Miaaio  Ages,  vol.  2,  c.  8. 


640  PABLIAMENTAEY  L\W  OF  TRIYILEGE. 

his  delivery  in  this  novel  and  extraordinary  manner,  (as  it  then 
was,)  were  imprisoned  by  the  house  of  commons,  some  in  the  tower, 
some  in  Newgate.  Thh'dly,  the  creditor  himself,  who  procm'ed 
the  arrest,  was  also  committed  for  his  contempt  of  the  privilege  of 
parliament.  As  the  matter  is  condensed  in  a  sentence  of  Sir  O. 
Bridgeman's  judgment,  "  This  case  doth  not  only  determine  the 
law  for  the  privilege  against  the  execution,  but  also  that  the  party 
ought  to  be  discharged  without  writ,  when  the  serjeant-at-arms 
comes  for  him."  There  was  however,  no  shght  aggravation  in 
this  case,  in  the  violent  and  contemptuous  manner  in  which  the 
sheriffs  and  their  officers  treated  the  serjeant-at-arms  bearing  the 
ensign  of  his  official  authority,  the  mace  ;  and  there  was  another 
fact  which  may,  at  least  in  Hatsell's  opinion,  serve  to  explain  the 
measure  here  adopted,  and  the  doctrines  now  for  the  first  time 
laid  down,  as  to  the  extent  of  the  privileges  of  the  house  of  com- 
mons. Ferrers  was  an  immediate  servant  of  the  king ;  so  that 
the  allowance  of  the  privilege  in  this  case  was  as  well  in  respect 
of  the  claim  of  the  king  for  his  servant,  as  of  the  claim  of  the 
house  for  its  members.  Add  to  this,  he  was  only  a  surety,  and 
was  aiTCsted  on  his  way  to  attend  the  parliament.  An  inferior 
court  would  liberate  a  person  arrested  under  similar  circumstances 
in  his  progress  to  attend  the  court  in  obedience  to  a  lawful  sum- 
mons. When  the  vehement  displeasure  of  the  house  had  at  length 
subsided,  they  acted  equitably  as  usual,  savmg  the  plaintiff's  exe- 
cution against  the  principal  debtor,  (who  would  have  been  dis- 
charged if  the  taking  of  FeiTers  were  lawful,)  and  discharging 
Fen-ers  himself  by  a  majority  of  only  fourteen,  and  after  a  long 
debate  of  nine  or  ten  days. 

Lawyers,  it  is  to  be  expected,  would  scarcely  admit  such  inno- 
vations without  findmg  room  for  difficulty  and  scruples.  They 
would  naturally  feel  some  hesitation  in  saymg  that  the  sheriffs 
ouglit  to  have  discharged  the  prisoner  on  their  own  responsibility, 
on  the  mere  order  of  the  Serjeant  bearing  his  mace.  They  would 
cons  d(r  that  if  that  should  not  be  deemed  a  good  authority  at 
law  for  the  discharge,  the  sheriffs  would  have  made  themselves 
Hable  for  the  debt.  They  might  retain,  too,  for  a  time,  their  for- 
mer opinion,  that  privilege  did  not  extend  to  arrest  in  execution 
on  a  judgment  had  before  the  time  of  privilege.     Accordingly,  we 


parliament.u:y  lvw  of  rRiriLEGE.  C41 

find  that  afterwards,  in  G  Queen  Eliz.,  a  Dyer,  when  chief  jiLstice, 
said,  "  That  if  a  man  is  condemned  in  debt  or  trespass,  and  Ls 
elected  a  member  of  parliament,  and  then  is  taken  in  execution, 
he  cannot  have  the  privilege  of  parliament ;  and  so  it  was  held  by 
the  sages  of  the  law  in  the  case  of  Fen-ers,  in  the  time  of  Hen.  8, 
"  Et  coment  que  h  j^i'it^dege  a  ceo  temps  fuit  a  luy  alloio,  ceo  full 
vii nits  just."  Dyer  h  himself  repoiis  a  case  which  occurred  within 
two  or  three  years  after  Ferrer's  case,  in  3G  and  37  Hen.  8,  viddlcet : 

Trewynnard's  case,  who  c  being  a  burgess  of  parhament,  and 
taken  in  execution,  and  in  custody  at  the  commencement  of  the 
session  on  a  judgment  entered  up  during  a  very  long  prorogation, 
was  fi'eed,  not  by  the  mace  or  serjeant-at-arms,  but  by  a  writ  of 
supersedeas  of  privilege  ;  which  WTit  was  a  security  to  the  sheriffs 
against  an  action  for  an  escape,  whether  the  privilege  were  allow- 
able or  not.  Such  an  action  luas  brought,  but  no  judgment  given. 
There  is  also  a  pecidiarity  in  the  writ  in  this  (Trewynnard's)  case, 
that  the  claim  of  privilege  is  for  the  first  time  extended,  in  point 
of  dui'ation,  beyond  the  time  of  members  going  to  parliament,  re- 
siding there,  or  retiu'iiing  home — to  persons  venientes  seu  venire 
intendentes. 

From  Fei-rer's  case  to  1575,  for  above  thu-ty  yeai-s,  the  house 
01  commons,  instead  of  adopting  the  mode  of  delivery  by  the  mace, 
ordered  writs  of  privilege  to  be  issued  in  almost  every  instance. 
It  appears  from  Hogan's  case,  in  1601,  that  it  was  still  later  before 
the  house  of  lords  exerted  this  privilege,  and  Hogan  was  a  servant 
of  the  queen ;  as  Ferrers,  in  whose  case  it  was  first  adopted,  has 
been  seen  to  have  been  of  the  king.  In  Smalley's  case,  however, 
(the  next  that  occurs,)  the  house  proceeded  with  gi-eat  dehberation, 
and  adopted  the  course,  after  a  long  debate  and  consultation ; 
and  it  was  not  till  long  after,  that  the  practice  became  established. 

Sh'  Thomas  Shirley's  d  case,  in  1G03,  in  which  the  warden  of  the 
fleet,  refusing  to  release  the  prisoner  when  demanded  by  the  ser- 
jeant-at-arms, was  committed  to  the  tower,  and  there  persisting 
in  his  obstinacy,  to  the  duugcon  of  Utfle  ease,  (a  dismal  hole  in  the 
tower,)  seems  at  last  to  have  rendered  it  apparent,  that  neither 
the  law  of  pai'liament,  nor  any  statute,  had  siitisfactorily  pointed 

a  Moore's  Reports,  57.  h  Dyer,  CI. 

c  Tryune's  Fourth  Register,  7S1.  d  Purl.  Hist.  Vol.  5,  p.  113. 

81 


642  PAELIAMENTAEY  LAW  OF  PEIYILEGE. 

out  a  mode  by  which  the  member  in  custody  in  execution,  should 
be  dehvered;  or  had  taken  care  to  secure  the  goaler  from  an 
action,  or  to  ensure  to  the  creditor  his  right  to  a  new  writ  of  exe- 
cution. To  effect  the  two  latter  objects  it  was  always  thought 
necessary  or  prudent,  to  make  a  particular  law ;  though  this 
opinion  is  controverted  by  Elsynge,  a  who  considers  the  arrest  as 
"  merely  void,  and  an  act  to  deUver  him  that  is  arrested,  or  to  save 
the  plaintiff"s  execution,  ex  abundanti  and  needless." 

In  order  to  avoid  all  difficulty  for  the  future,  it  was  thought  ex- 
pedient to  pass  the  general  law,  1  Jac.  1,  h  "  for  new  executions  to 
be  issued  against  any  which  shall  hereafter  be  dehvered  out  of 
execution  by  privilege  of  parliament,  and  for  discharge  of  them 
out  of  whose  custody  such  persons  shall  be  delivered ;"  with  this 
proviso,  "  Pro\dded  always,  that  this  act,  or  anything  therein  con- 
tained, shall  not  extend  to  the  diminishing  of  any  punishment  to 
be  hereafter  by  censure  in  parliament  inflicted,  upon  any  person 
which  shall  hereafter  make,  or  procure  to  be  made,  any  such 
arrest  as  aforesaid ;"  which  was  then  a  direct  parhamentary 
recognition  of  the  right  in  the  two  houses  of  parliament,  not  only 
to  hberate  persons  entitled  to  privilege,  but  to  inflict  punishment 
by  censure  in  parliament,  in  the  particular  case  of  arrests. 

After  the  act  of  1  Jac.  1,  c.  13,  some  formal  step  and  process  at 
law  seems  to  have  been  at  first  always  thought  necessary  to  give 
that  act  its  full  operation,  no  privileged  person  in  custody  in  exe- 
cution, having  been  for  sometime,  dehvered  by  any  other  method, 
than  by  vhtue  of  a  writ  of  privilege,  or  by  a  writ  of  habeas  cooyus, 
issued  in  obedience  to  a  warrant  under  the  speaker's  hand,  made 
by  order  of  the  house,  c  But  in  1625,  the  commons  declared  that 
"  the  house  hath  power,  when  they  see  cause,  to  send  the  serjeant 
immediately,  to  dehver  a  prisoner." 

Colonel  Pitt's  case,  reporied  in  Strange,  d  determines  by  what 
means  the  courts  of  law,  can  discharge  a  privileged  person  from  cus- 
tody. The  arrest  of  a  member  since  the  statute  10  Geo.  3,  in  civil 
cases,  is  held  in  that  case,  to  be  void  ab  initio,  and  it  is  thenceforth 
established,  that  he  may  be  discharged  immediately  upon  motion 

a  Manner  of  holding  parliaments  in  England. 

b  1  Jac.  1,  c.  13.  c  1  Hats.  165. 

<1  2  Strange,  985. 


PAIILL\JIENTARY  lAVf   OF  riilYlLLGE.  GIL} 

in  the  court  from  which  the  process  issued.  But  this  deteriiiiua- 
tiou  was,  of  course,  couiiued  to  the  methods  of  releashig  a  member, 
which  can  bo  pursued  in  Westminster  Hall,  There  was  then  no 
parliament  in  existence. 

When  parliament  was  sitting,  before  the  last  named  statute, 
the  house  of  commons  had  not  abandoned  their  claim  to  the 
power  of  releasing  their  members  arrested  under  civil  process, 
by  their  own  oflicers  and  pi(q)rio  vujore.  In  1G77,  Sir  Eobert 
Holt  was  discharged,  though  he  had  been  taken  in  execu- 
tion "out  of  the  privilege  of  parliament."  In  1707,  Asgill.a  a 
member  in  execution,  was  discharged ;  the  serjeaut  beiug  sent  with 
the  mace  to  the  warden  of  the  fleet.  In  many  other  cases  during 
the  seventeenth  century,  peers  and  members  aiTested  in  execution, 
were  released  without  writ  of  privilege  or  habeas  corpus.  And  ui 
cases  of  aiTest  on  mesne  process,  the  practice  prevailed  of  releasing 
the  piisoners  by  a  warrant,  or  sending  the  black  rod  in  the  name 
of  the  house  to  demand  them.  It  is  now  settled  that  members 
may  be  dischai'ged  immediately  by  warrant ;  and  this  does  not 
obtain,  only  where  the  prinlege  existed  anterior  to  the  arrest ;  but 
is  enforced  where  a  person  has  been  arrested  on  mesne  process 
and  is  in  custody, — but  is  afterwards  elected  a  member.  So  it  is 
now  enforced  where  he  has  been  in  custodj'  in  execution  before 
his  election.  & 

The  parties  effecting  an  an'est,  were  not  lightly  dealt  with  in 
former  times.  In  1G21,  Sir  J.  Whitelocke's  man  being  arrested, 
the  parties  were  called  to  the  bar  and  heard  on  theii*  knees.  They 
acknowledged  their  fault  and  craved  forgiveness  of  the  house  and  of 
Sir  J.  Whitelocke  ;  but  it  was  ordered  upon  the  question,  "  That 
they  shall  both  ride  upon  one  horse  bare-backed,  from  Westmin- 
ster to  the  exchange,  with  papers  on  their  breasts,  with  this  inscrip- 
tion,— 'For  arresting  a  servant  to  a  member  of  the  commons 
house  of  parliament.' " 

To  return  to  the  subject  of  the  freedom  of  a  member's  person, 

'(from  which,  the  consideration  of  the  means  and  process  employed 

to  deliver  liim  when  in  custody,  has  led  to  this  digression)  ;  the  law 

is  now,  at  all  events,  settlal  upon  a  rational  basis.     A  peer  or  mem- 

a  15  Com.  J.  471. 

b  Mill's  case,  1807;  Christie  Burton's  case,  1819. 


644  PARLIAMENTAKY  LAW  OF  PEIYILEGE. 

ber  of  parliament  may  be  sued,  but  cannot  be  arrested  or  detained 
in  custody.  His  person  shall  not  be  subjected  to  any  imprison- 
ment upon  process  in  civil  suits ;  but  the  pretended  privilege  of 
lands  and  goods  being  taken  away,  (if  it  ever  existed) ;  a  peer's  or 
member's  property  may  be  sequestered  for  non-performance  of  ar 
order  or  a  decree  of  a  court  of  equity, — or  levied  upon  under  i 
distringas  issued  by  a  court  of  law.  a 

By  the  10  Geo.  3,  "  Any  person  may  commence  and  prosecute 
any  action  in  any  court  of  record,  or  court  of  equity,  or  of  admi- 
ralty, (or  in  causes  matrimonial  and  testamentary,  in  any  court 
having  cognizance  of  such  cause,)  against  any  peer  or  member  of 
the  house  of  commons,  or  any  of  their  menial  or  other  servants,  or 
any  other  person  entitled  to  privilege  of  parliament ;  and  no  pro- 
ceedings thereupon  shall  be  delayed  under  color  of  such  privilege. 
But  this  shall  not  subject  the  person  of  any  member  of  the  house 
of  commons  to  be  arrested  or  imprisoned,  on  any  such  suit  or  pro- 
ceedings. And  .to  remedy  the  dilatoriness  by  process  of  distringas, 
the  court  out  of  which  the  writ  proceeds,  may  order  the  issues  levied 
from  time  to  time,  to  be  sold,  and  the  money  arising  thereby,  to 
be  apphed  to  pay  such  costs  to  the  plaintiff,  as  the  court  shall 
think  just,  and  the  surplus  to  be  detained  till  the  defendant 
shall  have  appeared,  or  other  pui-pose  of  the  writ  to  be  answered. 
And  obedience  may  be  enforced  to  any  rule  of  the  court  of  king's 
bench,  common  pleas,  or  exchequer,  against  any  person  entitled 
to  privilege,  by  distress  infinite,  if  the  person  entitled  to  the  benefit 
of  such  rule,  shall  choose  to  proceed  in  that  way." 

The  privilege  of  freedom  from  arrest  in  civil  suits,  extends  to 
protect  members  of  either  house  from  attachment  for  non-payment 
of  money,  or  for  non-performance  of  an  award,  h  So  likewise 
against  imformations,  and  as  well  in  the  king's  suit  as  a  subject's. 

But  there  is  no  such  exemption  in  criminal  cases  and  1/reaxihes  of 
the  peace.  To  'proceedings  on  iliese,  privilege  of  parliament  is  not 
considered  appilioaMe.  The  case  of  writing  and  publishing  seditious 
libels  was,  in  1763,  resolved,  by  both  houses  not  to  be  entitled  to 
pmdlege  upon  reasons  which  extended  equally  to  every  indictable 
offence.     The  only  privilege  of  parliament  in  such  cases,  of  crimes 

a  10  Geo.  3,  c.  50. 

5  WaUcer  v.  Earl  Grosvenor.     Catimer  v,  Sir  E.  Knatchbull,  7  T.  K.  171-448. 


PARLIAMENTARY  LAW  OF  TRIYILEGE.  C15 

and  misdemcfinors,  seems  to  be  the  right  of  receiving  immediate 
information  of  the  imprisonment  or  detention  of  any  member, 
with  the  reason  for  which  he  is  detained  ;  a  practice  that  is  daily 
used  upon  the  shghtest  military  accusations,  preparatory  to  a  trial 
by  court  martial,  and  which  is  recognized  by  the  several  temporar}' 
statutes  for  suspending  the  hahcm  corpus  act ;  whereby  it  is  pro 
vided  that  no  member  of  either  house  shall  be  detained,  till  the 
matter  of  which  he  stands  suspected,  be  first  communicated  to  the 
house  of  which  he  is  a  member,  and  the  consent  of  the  said  house 
obtained  for  his  commitment  or  detaining.  But  yet  the  usage  has 
uuiformally  been,  a  ever  since  the  revolution,  that  the  communica- 
tion has  been  subsequent  to  the  arrest. 

Neither,  in  matters  of  this  nature,  are  ^yeers  or  memhers  j^rotccted 
against  the  process  of  the  courts,  to  punish  disobedience  to  their  orders. 
To  this  effect  is  tJie  foUoiving  entry  b  ;  "  It  is  ordered  and  declared, 
that  no  peer  or  lord  of  parliament  hath  privilege  against  being  com- 
pelled, by  process  of  the  courts  of  Westminster  Hall,  to  pay  obedience 
to  a  tvrit  of  habeas  corpus  directed  to  him.''  Accordingly,  an  attach- 
ment may  be  granted,  if  the  peer  re/ uses  obedience  to  the  icrif ;  for 
being  a  contempt,  a  peer  has  no  privilege,  c 

In  1831,  Mr.  Long  Wdlesley  teas  committed  by  Lord  Brougham 
for  a  contempt  of  the  high  court  of  chancery,  and  a  committee  of 
privileges  in  the  house  of  commons,  held  that  Mr.  Wellesleys  claim  to 
be  discharged  from  imjjrisonmenf,  by  reason  of  pyrivilege  of  parlia- 
ment, ought  not  to  be  admitted. 

In  1837,  3Ir.  Lechmere  Charlton  icas  committed  by  Lord  Cotten- 
hamfor  contempt  in  meriting  an  improper  letter  to  a  master  in  chan- 
cery. The  house  of  commons  inquired  fully  into  the  nature  and 
particidars  of  the  contempt,  and  then  declined  to  interfere  for  the 
member  s  liberation  by  virtue  of  the  privilege. 

As,  since  the  10  Geo.  3,  c.  50,  a  person  having  privilege  of  par- 
liament may  be  sued  without  protection,  d  so  may  he,  be  made 
banki-upt  in  the  following  manner.  If  any  person  within  the  de- 
scription of  the  acts  relating  to  banknipts,  having  protection  of 
parliament,  does  not  within  one  calendar  month  after  iiersonal 

a  1  Black.  Com.  167.  h  L.  J.  7th  Feb.  1757. 

c  R.  vEarl  Ferrers,  1  Burr. 

d  4  Geo.  3,  c.  33,  s.  4.     45  Geo.  3,  c.  24,  s.  1.    6  Geo.  4,  c.  16. 


646  PAELIAMENTAEY  LAW  OF  rEIYILEGE. 

service  of  a  summons,  (an  affidavit  of  debt  having  been  filed  by 
the  creditor,)  pay  or  secure,  or  compound  for  such  debf,  to  the 
creditor's  satisfaction,  or  enter  into  a  bond  in  such  sum,  and  with 
two  such  sufficient  sureties,  as  any  of  the  judges  of  the  court  out 
of  which  the  summons  issued  shall  approve,  or  does  not  within 
one  calendar  month  next  after  personal  service  of  such  summons, 
cause  an  appearance  to  be  entered  to  such  action  or  actions  in  the 
proper  court,  every  such  trader  is  to  be  adjudged  d  a  bankrupt 
from  the  service  of  such  summons.  And  by  section  11,  if  any  such 
trader  disobeys  any  decree  pronounced  in  any  cause  depending  in 
any  court  of  equity,  or  any  order  made  in  bankruptcy  or  lunacy 
against  any  such  trader  for  the  payment  of  money,  the  same  hav- 
ing been  duly  served  upon  him,  and  a  peremptory  day  fixed  for 
such  payment,  such  trader  is  to  be  deemed  a  bankrupt  from  the 
service  of  such  order  for  peremptory  payment. 

If  a  bankrupt  be  a  member  of  parliament,  the  commissioners 
cannot  commit  hun  for  not  attending,  or  not  answering;  he  can 
only  be  imprisoned  in  such  cases  as  are  made  felony  by  the  acts 
relating  to  bankrupts.  But  a  member  of  parliament,  who  is  become 
a  bankrupt,  vacates  his  seat,  a  unless  the  commission  is  superseded 
within  twelve  months  from  its  being  issued,  or  the  creditors  are 
paid  their  debts  in  full  within  the  same  period  ;  and  is  disqualified 
for  sitting  in  the  interim.^ 

It  is  a  sufficient  objection  a  to  bail,  that  he  hath  privilege  of 
parhament,  whereby  the  plaintiff  may  be  delayed  in  obtaining 
payment  fiom  him. 

The  extent,  then,  of  the  privilege  last  under  consideration,  may 
now  be  regarded  as  sufficiently  ascertained  and  fixed.  It  may  be 
generally  laid  down,  that  no  member  of  either  house  can  be  arrested 
and  taken  into  custody,  or  detained  in  custody,  unless  for  some 
indictable  ofi'ence.  In  a  civil  suit,  a  peer  or  member  cannot  be 
arrested,  or  imprisoned,  without  a  breach  of  the  privileges  of  par- 
liament, which  either  house,  upon  the  report  of  the  committee,  w^ill 
upon  good  reason  punish  by  commitment.  But  how,  it  is  material 
to  learn,  is  a  party  to  be  delivered  out  of  custody  when  arrested 

a  6  Geo.  4,  c.  IC,  s.  11.  h  52  Geo.  3,  c.  1'14. 

c  4  Taunt.  249. 

Note  1. — Quaere.  What  might  be  the  effect  upon  a  New  York  legislature  if 
this  is  the  common  law  of  that  state  ? 


TARLIAJEENTART  L.VW   OF  I'llRTLEGE.  CIT 

in  a  civil  suit,  supposing  the  parliament  not  to  be  sitting,  or  to  bo 
dissolved?  In  what  manner  can  courts  of  justice  take  cognizance 
of  pri\'ilege  of  parliament  ?  For  it  has  been  seen,  a  that  when  a 
letter  was  written  by  the  speaker  to  the  judges,  to  stay  proceedings 
against  a  pri\ileged  person,  they  rejected  it  as  contraij  to  their 
oath  of  office.  These  objects  were  formally  affected  in  two  ways  ; 
1st,  the  discharge  of  such  privileged  b  person  might  bo  procuruil 
by  writ  of  privilege,  in  a  nature  of  a  supersedeas ;  2d,  such  arrest 
being  u'regular  ah  initio,  c  the  party  can  be  discharged  upon  mo- 
tion ;  d  he  may  move  the  court  from  which  the  process  issued,  that 
he  may  be  discharged  immediately. 

Writs  of  privilege  are  now  discontinued.  When  the  house  is 
sitting,  members  are  discharged  directly  by  wan-ant.  In  1810, 
Mr.  Christie  Burton  had  been  elected  member  for  Bsverly,  but 
being  in  custody  in  execution  and  on  mesne  process,  was  unable 
to  attend  his  ser\dce  in  parUament.  The  house  deteimined  that 
he  was  entitled  to  privilege,  and  ordered  him  to  bo  discharged 
out  of  the  custody  of  the  warden  of  the  fleet.  An  action  was 
brought  against  the  warden  by  the  assignees  of  the  creditors  of 
Mr.  Burton,  on  his  escape.  The  assignees  were  declared  guilty  of 
a  breach  of  privilege,  and  ordered  to  attend  the  house.  They  ac- 
knowledged their  offence  and  the  matter  was  droj^ped. 

The  extent  of  this  privilege  of  parliament,  and  the  mode  of  pro- 
curing the  liberation  of  parties  improperly  arrested  — points  which 
were  found  so  embarrassing  in  the  greater  part  of  the  cases  re- 
ferred to — being  thus  established,  the  next  question  affecting  this 
privilege  is  its  duration.  In  the  case  of  peers,  the  privilege  is 
perpetual ;  but  as  to  members, — where  the  privilege  is  that  of 
parhament, — its  duration,  the  reader  will  be  surprised  to  learn,  is 
no  where  precisely  e  determined.  It  certainly  is  the  received 
opinion,  that  it  extends  to  forty  days  after  every  prorogation,  and 
forty  days  before  the  next  appointed  meeting ;  and,  after  a  disso- 
lution, to  a  reasonable  time  to  return  home.^ 

Privilege  of  parliament  cannot  be  waived,  "  because  it  is  said, 
the  privilege  is  not  so  much  that  of  the  person/  as  of  the  house." 

rt  Hodges  V.  Moore,  a/i/e.  6  Latch.  150.     Dyer  60.  a  cFort34'2. 

d  Pitt's  case,  2  Stra.  985.        e  Strange,  985.     /D'Ew.  Jaurn.  4;?G.  Scobell,  95. 

Note  2. — In  this  particular,  New  York  differs  from  England,  in  having  a  stat- 
ute fixing  the  limit  of  priYilege. 


648  PAELIAMENTARI  LAW  OF  PEIVILEGE. 

The  speaker  charges  a  person  brought  to  the  bar  for  an  offence, 
witli  breach  of  the  privilege,  "  of  the  house." 

The  privileges  enjoyed  by  individual  members,  and  which  are 
essential  to  their  regular  attendance  on  parhament  and  to  the 
independent  discharge  of  then'  duties  in  the  house,  were,  on  that 
account,  brought  prominently  forward  in  the  speaker's  prayer  ;  but 
it  will  now  be  proper  to  treat  generally  of  the  collective  privileges 
of  the  two  houses,  or  rather  of  the  high  court  of  parliament.  These 
can  be  best,  and  indeed  only,  ascertained,  by  examining  what 
have  been,  on  various  occasions,  declared  breaches  of  the  privile- 
ges of  either  house. 

Such  are  among  others,  indignities  to  the  character,  or  obstruc- 
tions to  the  proceedings  of  either  house ;  assaulting,  obstructing, 
insulting  or  menacing  any  member  in  his  coming  to  or  going  from 
the  house ;  so,  the  endeavor  to  compel  members  by  force,  to  de- 
clare themselves  in  favor  of  or  against,  any  proposition. 

Challenging  a  member  for  his  conduct  in  the  house  or  in  a  com- 
mittee. Libellous  reflections  against  the  honor  and  dignity  of  the 
house  in  general,  or  any  member  thereof.  These,  and  similar 
offences,  have  been  voted  breaches  of  privilege  and  punished 
accordingly,  whether  committed  by  members  or  strangers,  a 

And  first  in  the  case  of  members  :  In  1675,  Lord  Shaftesbury, 
who  had  been  committed  by  the  house  of  lords  for  high  contempt 
against  the  house,  was  brought  before  the  court  of  queen's  bench 
by  habeas  corpus,  and  the  commitment  for  a  contempt  generally, 
being  returned,  the  prisoner  was  remanded.  In  1586,  Arthur 
HaU,  a  member  of  the  House  of  Commons,  was  imprisoned,  ex- 
pelled and  fined ;  the  latter  a  power  not  acknowledged,  and 
which  the  house  has  not  since  been  in  the  habit  of  exercising,  a 
Hall's  ofi'ence  was  having  published  a  libel,  "  containing  matter 
of  infamy,  of  sundry  particular  members  and  of  the  whole  state 
of  the  house,  and  also  of  the  power  and  authority  of  the 
house."  In  1810,  Sir  Francis  Burdett,  was  sent  to  the  tower 
for  publishing  "  a  libelous  and  scandalous  paper  reflecting 
upon  the  just  privileges  of  the  house."  In  Hobhouse's  case,  in 
the  year  1819,  the  house  of  commons  having  voted  the  defendant 

a  See  cases  cited  in  the  appendix  to  the  second  report  on  Sir  F.  Burdett,  in 
1810  ;  and  the  head  of  "  Complaints"  in  the  several  Journal  Indexes. 


PARLIAMEKTAIIY   L.VW   OF   rrtR'ILEGE.  C49 

guilty  of  a  breach  of  their  privileges,  for  pubU.shing  a  lilxl  upon 
the  house,  and  having  ordered  him  to  bo  committed  to  Newgate 
during  their  pleasure,  and  the  speaker's  warrant  being  returned 
into  the  court  of  King's  bench  upon  a  hnlms  corpus  sued  out  b}- 
the  defendant,  the  court  refused  to  discharge  him  out  of  custody. 
In  the  case  of  defendants,  not  members  of  either  house,  the  fol- 
lowing arc  selected  instances  :  In  1770,  Flower  was  fined  and 
committed  for  a  hbel  on  the  bishop  of  LlandalF.  In  1798,  Messrs. 
Lambert  and  Perry  were  fined  X50  each,  and  committed  to  Newgate 
for  thi'ee  months,  for  a  newspaper  paragi-aph,  highly  reflecting  on 
the  honor  of  the  house  of  lords,  b  On  the  22d  June,  1781,  complaint 
was  made  that  Sir  J.  Wrottesley  had  received  a  challenge  for  his 
conduct  as  a  member  of  an  election  committee ;  and  Swift,  the 
person  complained  of,  was  committed  to  the  custody  of  the  ser- 
jeant-at-a)-]ns.  c 

Besides  insults  and  obstructions  to  the  house  and  its  proceed- 
ings, disobedience  to  the  rales  and  orders  of  either  house  is  treated 
as  a  breach  of  pri\'ilege.  The  house  will  punish  those  who  refuse 
compliance  with  their  orders,  or  obstruct  their  execution.  And 
that,  whether  the  orders  be  general;  as  thatd  "no printer  or  pub- 
lisher of  any  printed  newspaper  do  presume  to  insert  in  any  news- 
paper, any  debates  or  other  proceedings  of  the  house  ;"  or  par- 
ticular ;  such  as  orders  relating  to  "  attendance  before  committees ;" 
"  the  production  of  papers  and  records,  &c." 

Another  offence  against  the  collective  privileges  of  the  house,  is 
the  corruption  or  hindrance  of  witnesses  summoned  to  attend  or 
appear  before  it.  e 

Anciently  no  person  was  to  be  taken  into  the  custody  of  the 
serjeant-at-arms,  upon  any  complaint  of  a  breach  of  privilege, 
until  the  matter  of  the  complaint  had  been  examined  by  the  com- 
mittee of  privileges,  and  reported  to  the  house./  Now,  although 
the  committee  of  privileges  is  still  formally  appointed  at  the  com- 
mencement of  each  session,  no  members  are  nominated.  If,  there- 
fore, any  special  circumstances  arise  out  of  a  complaint  of  breach 

a  p.  137,  ante.  h  Lords  J.  506. 

c  Com.  J.  535-537.  d  20  Com.  J.  99. 

e  See  Synthetical  Table  of  the  proceedings  of  the  house  of  commons,  framed 
Dv  Lord  Colchester,  and  prefixed  to  the  Index  of  the  Commons'  Journal. 
/Resolution,  1701. 

82 


G50  PARLIAMENT AEY  LAW  OF  miYILEGE. 

of  privilege,  it  is  usual  to  appoint  a  select  committee  to  inquii'e 
into  them.  In  ordinary  cases  tlie  part j  complained  of  is  "  ordered 
to  attend  tlie  house,"  and  is  examined  at  the  bar. 

Both  houses  proceed  in  the  same  manner  to  declare  the  party 
guilty  of  a  breach  of  privilege,  amounting  to  a  contempt  of  the 
high  court  of  parliament,  for  which  they  deal  with  him  by  censure 
or  commitment ;  to  which  the  lords  can  add  a  fine. 

For  there  is  a  difference  in  the  punishments  inflicted  by  the 
lords  and  commons.  The  house  of  lords  claim  to  be  a  court  of 
record,  because  it  is  such  unquestionably,  when  it  acts  in  its  judi- 
cial capacity.  It  therefore  not  only  imprisons,  but  also  imposes 
fines ;  and  formerly  in  cases  of  libel,  (when  disgracefully  severe 
punishments  used  to  be  awarded) ;  often  added  the  piUory. 

The  lords  have  also  power  to  commit  offenders  to  prison  for  a 
specified  time,  beyond  the  duration  of  the  session  ;  and  to  order 
security  for  good  behavior. 

The  house  of  commons,  which  is  not  a  court  of  record,  has  tac- 
itly abandoned  the  imposition  of  fines,  but  imposes  the  condition 
of  the  payment  of  fees  before  an  offender  is  discharged,  which  is 
equally  part  of  his  punishment,  and  virtually  amounts  to  a  fine. 
Ko  period  of  imprisonment  is  named  by  the  commons,  and  the 
confinement  terminates  with  the  session. 

In  Floyd's  case,  who  had  spoken  offensive  words  of  the  king's 
daughter  and  the  Elector  Palatine,  temp.  Jac.  I.,  the  house  of 
commons  set  up  an  unfounded  claim  to  criminal  jurisdiction  ;  for 
it  was  impossible  to  make  such  mere  indecencies  of  language, 
amount  to  a  breach  of  pri\ilege.  Acting  as  a  court  of  judicature, 
they  pronounce  sentence  that  Floyd,  a  gentleman  by  bu-th  and 
station,  and  a  country  magistrate,  should  pay  a  fine  of  XIOOO, 
stand  twice  in  the  pillory,  and  ride  backward  on  a  horse  with  the 
horse's  tail  in  his  hand,  a  They,  however  afterwards  discovered 
their  error,  and  changed  the  course  of  proceeding  h  into  an  im- 
peachment of  Floyd  before  the  lords ;  with  an  ambiguous  and 
unmeaning  protestation  as  to  the  rights  and  privileges  of  the  con  - 
mons  remaining  in  the  same  plight  as  before.  The  lords,  it  is  saif"', 
equally  disgraced  themselves  in  this  case,  e 

a  1  Com.  J.  609.  5  Tarl.  Hist.  h  lb.  619. 

c  3  Lords  J.  131 


rAIlLI.YMENTARY  L.\W  OF  rRTYILEGE.  C51 

Instead  of  "kiiccliug  at  the  bar,"  to  receive  Lis  sentence  whicli 
was  formally  required,  but  not  always  complied  with  ;  the  jud^'- 
ment  of  the  house  is  now  received  by  a  prisoner  standing  at  the 
bar.  a 

Having  treated  of  the  punishments  inflicted  by  either  house  of 
parliament,  for  obstnictions  or  contempts,  or  disobedience  to  orders, 
it  remains  to  speak  of  tlie  protection  afforded  to  their  own  officers, 
to  parties,  witnesses  and  others. 

The  officers  of  either  house,  are  supported  by  the  house  in  the 
execution  of  their  orders.  As  the  officers  of  the  courts  of  justice, 
charged  with  the  execution  of  the  process  of  the  courts,  may  break 
open  doors,  if  necessary,  in  order  to  execute  it ;  so,  Lord  Ellen- 
borough  said,  it  cannot  be  contended  that  the  houses  of  the  legis- 
lature, are  less  strongly  armed  in  point  of  protection  and  remedy 
against  contempts  toward  them,  than  the  courts  of  justice  are.  h 

But  by  a  recent  case,  the  serjeant-at-arms,  though  he  has  a 
right  to  enter  the  house  of  the  person  against  whom  a  warrant 
has  been  issued  by  the  speaker  and  to  search  for  the  party,  had 
no  right  to  remain  in  the  house,  if  the  defendant  be  from  home, 
in  order  to  await  his  return ;  for  that  is  an  excess  of  jurisdiction,  r 
Another  action  was  subsequently  brought  by  the  same  jDlaintiff 
against  the  same  defendant,  and  a  messenger  of  his,  for  another 
trespass  in  executing  a  warrant  of  the  speaker.  The  warrant  was  so 
cbawn  as  to  make  it  legally  doubtful,  and  three  of  the  judges  felt 
themselves  compelled  to  pronounce  it  illegal.  AU  the  judges  agi-eed 
that  they  were  bound  to  examine  into  its  sufficiency ;  one  held  that 
it  was  sufficient.  The  house  of  commons  in  this  case  directed 
a  discussion  of  tliis  point  in  a  court  of  eiTor,  but  the  point  involved 
is  of  secondary  importance. 

We  have  already  said  that  we  have  not  with  us  in  America  as 
there  is  in  England,  one  uniform  common  law  of  parliament  and 
of  privilege  applicable  alike  to  the  congress  of  the  United  States, 
and  to  tlie  several  states  of  the  Union  ;  but,  that  gi-eat  diversitv 
exists  between  the  privileges  of  members  of  congress,  and  tliat  of 
the  several  states ;  and  that  parhamcntary  law  and  the  law  of  leg- 
islative privileges  of  the  several  states,  differ  from  each  other; 

a  33  Com.  J.  594.  h  11  East,  1. 

c  Carringtou  and  M.  382.  11  Adol.  &  El.  209. 


652  PAELIAMENTAEY  LAW  OF  PEIVILEGE. 

that  the  law  of  privilege  of  the  state  of  New  York  which  is  regu- 
lated and  limited  by  statute,  is,  in  its  features  ;  in  its  leLgth  and 
breadth  ;  in  what  it  allows  and  what  it  prohibits ;  in  nearly  every 
particular,  identical  with  the  law  of  privilege  of  parliament  of 
England,  which,  like  ours,  is  now  regulated  by  statute,  and  in 
almost  identity  of  language. 

In  compiling  this  chapter  from  the  Englisli  common  law,  believed 
to  be  in  force  here,  there  has  been  the  endeavor,  to  present  the 
American  readers,  in  this  brief  review,  with  as  much  of  the  legal 
powers  and  privileges  of  parliament,  as  shall  direct  their  minds 
and  the  minds  of  members  who  shall  compose  our  legislative  as- 
sembhes,  to  the  authorities  cited,  and,  to  more  elaborate  sources 
of  knowledge  of  the  science  of  parliamentary  law.  Few  men 
should  be  regarded  as  fit  for  legislators,  who  require  to  be  in- 
formed, that  nearly  all  the  privileges  of  civil  liberty,  of  which 
the  American  citizen  now  so  proudly  boasts,  first  had  their 
introduction,  if  not  their  origin,  in  the  house  of  commons  of 
the  British  parliament.  It  is  as  equally  untrae  now  in  Eng- 
land, as  it  is  in  the  state  of  Kew  York,  that  parliamentary 
law  is  vague,  unsettled,  and  uncertain.  It  is  not  true,  that 
either  the  law  of  the  parliament  of  England,  or  that  of  either,  or 
both  the  houses  of  the  legislature  of  the  state  of  New  York,  is 
just  what  those  bodies  see  fit  to  declare  it.  It  is  a  branch  of  the 
common  law,  as  easily  traced  and  determined  as  any  other,  and  if 
we  have  succeeded  in  nothing  else,  we  hope  to  have  succeeded  in 
exciting  such  a  spirit  of  inquiry  into  a  knowledge  and  of  the 
science,  of  parliamentary  law,  as  shall  save  experienced  legislators 
in  future,  from  the  assumption  of  a  knowledge  of  and  an  attempt 
to  exercise  powers  inconsistent  with  established  law  and  of  con- 
stitutional right ;  aggressive  upon  the  sacred  rights  of  a  co-equal, 
and  co-ordinate  department  of  the  government ;  unbecoming  to 
the  character  of  inteUigent  legislators  ;  and  e\dncing  the  want  of 
comity  and  respect  due  to  an  equal. 

In  this  compilation  of  EugHsh  parliamentary  law,  the  authori- 
ties, before  the  thirteenth  year  of  Wm.  Ill,  have  also  been  given. 
We  have  done  this  to  show  what  was  the  law  before,  as  well  as 
since  that  day :  so  that  by  reference,  to  either  period,  it  will  be 
seen  how  little  knowledge  of  English  parliamentary  law  is  some- 


PAELLVMENTARY  L.UV  OF  rRIVILEGE.  G53 

times  found  in  legislative  bodies,  ^\c  luive  also  oit«jd  the  chaugt-s 
wrought  in  the  common  law  by  the  statute  of  AVilham  III  as  well 
as  that  of  13  Geo.  Ill,  which  entiiely  abrogated  the  arbitrary  and 
unlimited  powers  claimed  by  Sir  Edward  Coke  (when  speaker  of 
the  house  of  commons,  in  one  of  the  parhaments  in  the  reigai  of 
Queen  Elizabeth,)  who  declared,  "  that  the  high  coui-t  of  parlia- 
ment subsists  by  its  own  laws  and  customs ;  that  it  Ls  the  law  and 
custom  of  parliament,  that  all  weighty  matters  therein  conceniing 
the  peers  of  the  realm  or  corumons,  ought  to  be  determined,  ad- 
judged and  discussed  according  to  the  course  of  parliament,  and 
not  by  the  civil  law,  nor  yet  by  the  common  law  used  in  the  more 
infeiior  couiis."  But  the  modern  writers  since  the  statutes  above 
referred  to  sucli  as  Dwanis,  Cobbitt,  in  his  Parliamentary  Debates, 
May's  Treatise,  Hatscll,  and  the  jutlicial  decisions  cited,  present 
a  uniform  body  of  parliamentary  law,  which  is  now  as  well  imder- 
stood  in  England  to  be  the  settled  law,  as  is  any  other  branch  of 
the  common  law\ 

The  remaining  privileges  of  parliament  not  herein  discussed, 
how'ever  essential  and  useful,  they  might  be,  are  too  remote  from 
the  subject  of  the  present  inquiry,  and  too  wide  and  extensive  in 
their  consequences,  to  bo  comprehended  in  the  present  treatise. 


664  OF  CONSTITUTIONAL  INTEEPEETATION. 


CHAPTER    XIX. 

OF  CONSTITUTIONAL  INTERPKETATION. 

In  some  of  the  preceding  chapters,  the  rules  of  interpretation 
of  statutes  compiled  fi-om  the  distinguished  authors  whose  names 
and  works  are  therein  given,  have  extended  their  rules  in  some 
respects,  beyond  the  mere  interpretation  and  construction  of  stat- 
utes ;  they  include  in  pai-t,  the  construction  of  what  are  called 
constitutions,  but  not  in  the  American  sense,  that  of  written  con- 
stitutions established  by  the  people  themselves.  "While  treating 
of  the  subject  of  interpretation,  therefore,  in  a  work  which  treats 
of  constitutional  powers,  we  should  fail  in  duty,  should  we  omit  to 
present  an  outline  of  the  best  American  views  of  construction  of 
American  constitutions,  so  necessarily  connected  with  the  con- 
struction of  statutes ,  which  depend  for  their  force  upon,  and  are 
enacted  in  subordination  to,  constitutional  power. 

There  is  a  striking  analogy,  and  generally,  an  entire  harmony 
between  the  rules  of  interpretation  of  constitutions,  and  those  of 
statutes ;  but  inasmuch  as  the  former  are  superior  in  power  and 
authority  to  the  latter,  and  as  in  cases  of  conflict  here,  the  latter 
must  give  way,  and  yield  to  the  former,  (by  rules  of  construction 
pecuhar  to  our  system,  for  which,  other  governments  furnish  no 
precedent),  and  that  construction  must  necessarily  be  adopted, 
which  is  more  especially  apphcable  to  our  somewhat  complex 
theory  of  laws,  enacted  in  subordination  to  the  written,  but  limited 
constitutions. 

First,  of  the  constitution  of  the  United  States.  It  is  the  consti- 
tution of  a  government  ordained  and  established  by  the  people 
of  the  United  States  for  themselves  and  their  posterity  ;  and  they 
have  declared  it  to  be  the  supreme  law  of  the  land  ;a  but  it  is  still 
a  limited  government.  The  people  who  made  it,  have  defbied  its 
powers.  They  have  limited  it  to  the  exercise  of  certam  powers,  and 
have  reserved  all  other  powers  to  the  states  or  to  the  people,  h  "It 
is  a  popular  government.    Those  who  administer  it,  are  responsible 

a  Constitution  U.  S.,  Art.  G.  h  Story  on  Constitution,  §  397. 


OF  CONSTITUTIONAL  INTEP.rRETATION.  G55 

to  tlic  pcoplo.  It  is  as  popular,  and  just  as  much  emauating  from 
tlio  pcoplo,  as  the  stato  govornmeuts.  It  is  created  for  ouc  pur- 
pose ;  the  state  governments  for  another.  In  short,  it  was  made 
by  the  people,  made  for  the  people,  and  is  responsible  to  the 
people."  a 

Mr.  Justice  Story  says,  that  much  of  the  difficulty  of  intei-preta- 
tiou  of  this  instrument,  has  arisen  from  the  want  of  miiform  rules  ; 
and  he  then  proceeds  in  the  endeavor  to  ascertain,  and  lay  down 
true  rules  of  intei-pretation  applicable  to  this  constitution,  so  that 
we  may  have  some  fixed  standard  by  which  to  measure  its  powers, 
limit  its  prohibitions,  guard  its  obhgations,  and  enforce  its  securi- 
ties of  our  rights  and  liberties,  b 

He  says  "  that  the  fii'st  and  fundamental  rule  in  relation  to  the 
interpretation  of  all  instruments,  applies  to  the  constitution ;  that 
is,  to  construe  them  according  to  the  sense  of  the  terms,  and  the 
intention  of  the  parties ;  and  he  adopts  Blackstone's  remark,  that 
the  intention  of  a  law  is  to  be  gathered  from  the  words, — the  con- 
text, the  subject  matter,  the  effects  and  consequences,  or  the  rea- 
son and  spirit  of  the  law,  c  and  that  words  are  generally  to  be  un- 
derstood in  their  usual  and  most  known  signification,  not  so  much 
regarding  the  propriety  of  the  grammar,  as  their  general  and  pop- 
ular use  ;  that  if  words  happen  to  be  dubious,  their  meaning  may 
be  estabHshed  by  the  context,  or  by  comparing  them  with  other 
words  and  sentences  in  the  same  instrument ;  that  illustrations 
may  be  fvu'ther  derived  from  the  subject  matter,  %\ith  reference  to 
which  the  expressions  are  used ;  that  the  effect  and  consequence 
of  a  particular  construction  is  to  be  examined,  because  if  a  literal 
meaning  would  involve  a  manifest  absurdity,  it  ought  not  to  be 
adopted  ;  and  that,  the  reason  and  sphit  of  the  law,  or  the  causes 
which  led  to  its  enactment,  are  often  the  best  exponents  of  the 
M'ords,  and  hmit  their  application."  d 

"  Where  the  words  are  plain  and  clear,  and  the  sense  distinct 
and  perfect  arising  on  them,  there  is  generally  no  necessity  to 
have  recourse  to  other  means  of  intei-pretation.  It  is  only  where 
there  is  some  ambiguity  or  doubt  arising  fi'om  other  soiu'ces,  that 
interpretation  has  its  proper  office.     There  may  be  obscuiity  as 

a  Webster's  Speeches,  410  to  419.  c  1  Com.  59. 

b  Stor}'  on  Constitution,  §  399.  d  See  Vattels  Eules,  Ch.  5. 


65G  OF  CONSTITUTION.VL  INTEKrEETATION. 

to  the  meauiug,  from  the  doubtful  character  of  the  words  used, 
— from  other  clauses  in  the  same  instrument  or  from  an  incon- 
gi-uity  or  repugnancy  between  the  words,  and  the  apparent  inten- 
tion derived  fi'om  the  whole  structure  of  the  instrument  or  its 
avowed  object.  In  such  cases,  interpretation  becomes  indispen- 
sible."  a 

This  learned  commentator  adopted  the  rules  of  interpretation 
laid  down  by  Eutherford,  which  will  be  found  in  a  preceding 
chapter,  b  as  apphcable  to  constitutional  intei'pretation.  We  do 
not  therefore  propose  to  repeat  them  here.  These,  which  he  calls 
elementary  explanations,  he  says,  will  aid  in  making  a  closer 
practical  apphcation  when  we  arrive  at  more  dejQnite  rules. 

In  construing  the  constitution  of  the  United  States,  it  must  be 
remembered,  that  it  is  the  fundamental  law  of  the  land  ; — that  it 
was  ordained  and  estabhshed  by  the  people  of  the  nation  for  the 
purpose  of  instituting  a  national  government  to  be  invested  with 
supreme  authority  to  provide  for  then  common  defence  ; — to  pro- 
mote their  general  welfare,  and  to  secure  to  themselves  and  their 
posterity  the  blessings  of  civil  liberty. 

We  are  also  to  consider  first,  what  is  its  nature,  its  objects,  scope 
and  design,  as  apparent  fi'om  the  structure  of  the  instrument  itself 
viewed  as  a  whole,  and  also  as  viewed  in  its  component  parts. 

Where  its  words  are  plain,  clear  and  determinate,  they  require 
no  interpretation,  as  a  general  rale.  If  in  such  case  interpretation  is 
ever  admitted,  it  is  only  in  some  case  of  actual  necessity  to  escape 
an  absurd  consequence,  or  to  guard  against  some  fatal  evil,  c 

"VMiere  words  admit  of  two  senses,  each  of  which  is  conformable 
to  common  usage,  that  sense  is  to  be  adopted,  which,  without  de- 
parting from  the  literal  import  of  the  words,  best  harmonizes  with 
the  nature  and  objects,  the  scope  and  design  of  the  instrument. 
Where  the  words  are  imambiguous,  but  the  provisions  may  cover 
more  or  less  ground  according  to  the  intention,  which  is  yet  sub- 
ject to  conjecture ;  or,  where  it  may  include  in  its  general  terms 
more  or  less  than  might  seem  dictated  by  the  general  design,  as 
that  may  be  gathered  from  other  parts  of  the  instrument,  there  is 
much  more  room  for  controversy. 

a  Story  on  Constitution,  §  401.  c  Story  on  Constitution,  §  404, 

I  Chapter  5. 


OF  CONSTITUTIONAL  INTERTRETATION.  657 

It  is  regarded  us  appropriate  for  the  courts,  and,  as  a  matter 
entitled  to  their  most  careful  consideration,  in  giving  construction 
to  the  constitution;  to  look  back  at  the  situation  of  the  coxmtry  at 
the  time,  and  antecedent  to  the  time  of  its  adoption ;  to  look  at  its 
ihen  existing  institutions,  at  the  existence  and  operations  of  the 
then  state  governments,  at  the  powers  and  worldngs  of  the  old 
confederation,  and  at  all  other  circumstances  which  had  a  tendency 
to  produce  or  obstruct  its  formation  and  ratification ;  a  and  it  is 
also  held,  that  contemporary  history  and  contemporary  interpre- 
tation may  be  called  in  to  aid  m  arri\'ing  at  just  conclusions,  b 

"  The  safest  rule  of  interpretation,  will  be  found  to  be,  to  look 
into  the  nature  and  object  of  the  particidar  powers,  duties  and 
lights,  with  all  the  hghts  and  aids  of  contemporary  histor}',  and  to 
give  to  the  words  of  each,  just  such  operation  and  force  consistent 
with  their  legitimate  meaning,  as  may  fairly  secure,  and  attain  the 
ends  proposed,  c  It  will  indeed,  probably  be  found,  when  we  look 
into  the  chai'acter  of  the  constitution  itself,  the  objects  which  it 
seeks  to  obtain,  the  powers  which  it  confers,  the  duties  which  it 
rnjoins,  and  the  rights  which  it  secures,  as  well  as  the  known  his- 
torical fact  that  many  of  its  provisions  were  matters  of  compro- 
mise of  opposing  interests  and  opinions,  that  no  uniform  rule  of 
interpretation  can  be  applied  to  it  which  may  not  allow,  if  it  does 
not  positively  demand,  man}-  modifications  in  its  actual  application 
to  particular  clauses." 

While  these  aids  of  contemporary  liistory  and  construction 
may  l:>e  resorted  to  to  illustrate  and  confirm  the  text,  to  explain  a 
doubtful  phrase,  or  to  expound  an  obscure  clause,  they  must  be 
resorted  to  with  great  reserve  and  much  qualification.  They  can- 
not abrogate  the  text ;  they  can  never  fritter  away  the  obvious 
sense  ;  they  can  never  narrow  down  its  true  limitations  ;  they  can 
never  enlarge  its  natural  boundaries,  d  The  private  interpretation 
of  any  particular  man,  must  manifestly  be  open  to  much  objection. 
The  constitution  was  adopted  by  the  whole  people  ;  the  whole  of 
\rhich,  was  submitted  as  it  stood  in  the  text  to  the  whole  people 
^\■\\o  are  to  be  presumed  to  have  adopted  it  upon  a  just  examina- 

a  Storj',  §  405.  h  Stuart  v.  Laird,  2  Cranch.  309. 

c  Bigg  V.  Commonwealth  of  Peun.  IG  Pet.  E.  GIO;  Cohens  v.  Virginia,  6  ■\^^Ioal. 
418,  per  Marshall,  Ch.  J.  d  Story  on  Constitution,  §§  406-407. 

83 


Go8  OF  CONSTITUTION^  INTEEPEETATION. 

tion  of  its  XDrovisions.  Doubtless,  in  different  states,  different  ob- 
jections werq  raised,  and  different  opinions  may  have  prevailed  as 
a  reason  for  its  adoption  ;  and  there  is  no  certainty  that  different 
states,  or  conventions,  gave  the  same  uniform  interpretation  to  its 
language ;  or  that  the  same  reasoning  prevailed  with  a  majority 
of  any  one  state  who  supported  and  adopted  it.  Therefore  the 
difficulty,  not  to 'say  dangers,  of  attempting  to  resort  to  opinions 
of  those  who  either  assisted  in  forming  or  adopting  it.  Some  may 
have  impHed  lii2::.itations  and  objects,  which  others  would  have 
rejected,  and  fh3  latter  may  have  favored  its  ratification  by  im- 
plying entireV ,  limitations  and  powers,  fi'om  the  same  language  of 
the  text. 

Some  mjy  have  taken  a  cursory  view  of  its  enactments,  and 
others  liar?  studied  them  with  profound  attention;  some  may  have 
been  go^/cmed  by  a  temporary  interest  or  excitement,  and  have 
acted  liV^^n  that  exposition  which  most  favored  their  present  views ; 
otherj  may  have  seen  lurking  beneath  its  text,  what  commended  it 
to  Qeir  judgment  against  even  present  interests.  Some  may  have 
xterpreted  its  language  strictly  and  closely,  others  from  a  differ- 
mt  habit  of  thinking,  have  given  to  it  a  large  and  Hberal  meaning, 
[t  is  not  to  be  presumed,  that  even  the  convention  that  framed 
it,  that  every  sentence  and  expression  was  always  understood  in 
precisely  the  same  sense.  Every  member  necessarily  judged  for 
himself,  and  the  judgment  of  no  one  could,  or  ought  to  be  conclu- 
sive upon  that  of  others.  Nothing  but  the  text  itself  was  adopted 
by  the  people,  a 

The  first  general  rule  of  interpretation  laid  down  by  Story,  to 
be  drawn  from  the  nature  of  the  instrument,  is,  "  It  is  to  be  con- 
strued as  a, frame,  or  fundamental  lata  of  government,  established 
by  the  peojjJe  of  the  United  States,  according  to  their  own  free 
pleasure  and  sovereign  will.  In  this  respect  it  is  in  no  wise  dis- 
tinguishable from  the  constitutions  of  the  state  governments. 

Each  of  these  are  established  by  the  people  for  their  own  pur- 
poses, and  each  is  founded  on  their  supreme  authority.  The 
powers  which  are  conferred,  the  restrictions  which  are  imposed,  the 
authorities  which  are  exercised,  the  organization  and  distribution 
thereof  which  are  provided,  are,  in  each  case  for  the  same  object, 

a  Story  on  Const.,  §  40G. 


OF   CONSTITUTION.VL  INTERrRETATION.  ijj'J 

tlie  common  benefit  of  tlic  governed,  and  not  for  the  profit  or  dig- 
nity of  the  rulers."  a 

When  it  is  said,  that  the  constitution  of  the  United  States 
shouhl  be  construed  stridl/j,  viewed  as  a  social  compact  -whenever 
it  touches  the  rights  of  property,  or  of  personal  security,  or  libei-ty ; 
tae  rule  is  equally  applicable  to  the  state  constitutions  in  like 
cases.  The  principle  upon  which  this  inteii:)retation  rests,  if  it  has 
any  foundation,  must  be,  that  the  people  ought  not  to  be  presumed 
to  yield  up  their  rights  of  property  or  liberty  beyond  what  is  the 
clear  sense  of  the  language  and  the  objects  of  the  constitution. 

All  governments  are  founded  upon  a  suiTcnder  of  some  natural 
rights;  and  they  impose  some  restrictions.  Therefore — in  con- 
stniing  a  constitution  of  government,  framed  by  the  people  for  their 
own  benefit  and  protection,  for  the  preservation  of  their  rights, 
and  property,  and  Hberty,  where  the  delegated  powers  are  not, 
and  cannot  be  used  for  the  benefit  of  their  rulers  who  are  but 
their  temporary  servants  and  agents,  but  are  intended  solely  for  the 
benefit  of  the  people,  no  presumption  arises  of  an  intention  to  use 
the  words  of  the  constitution  in  the  most  restricted  sense.  The 
strict,  or  most  extended  sense,  being  equally  within  the  letter,  may  be 
fairly  held  to  be  within  their  intention,  as  either  shall  best  promote 
the  very  objects  of  the  people  in  the  gi"ant,  and  as  either  shall 
best  promote  or  secure  their  rights,  property  or  liberty,  b 

"  The  words,  are  not,  indeed,  to  be  stretched  beyond  their  fair 
sense ;  but  within  that  range,  the  rule  of  interpretation  must  be 
taken  which  best  follows  out  the  apparent  intention."  c  This  is 
the  mode  (it  is  believed),  universally  adopted  in  construeing  the 
state  constitutions.  It  has  its  origui  in  common  sense.  And  it 
can  never  be  an  object  of  just  jealousy,  because  the  rulers  can 
have  no  permanent  interest  in  a  free  government  distinct  from 
that  of  the  people,  of  whom  they  are  a  part,  and  to  whom  they 
are  responsible. 

This  view,  is  m  no  danger  of  producing  a  conflict  between  the 
f  jderal  and  the  state  governments,  for  if  the  powers  of  the  general 
government  are  of  paramount  and  supreme  obligation  ;  if  they  con- 
stitute the  supreme  law  of  the  land ;  no  conflict  as  to  obedience 

a  Story,  §  409.  c  Eawle  on  Constitution,  Ch.  7,  p.  31. 

h  Story  on  Constitution,  §  413. 


OGO  OF  CONSTITUTIONAL  INTEEPRETATION. 

can  be  found.  Whenever  the  question  arises,  as  to  whom  obedi- 
ence is  due,  it  is  to  be  judicially  settled ;  and  being  settled,  it  regu- 
lates at  once,  the  rights  and  duties  of  all  the  citizens. 

Thus  ado^Dting  a  uniform  rule  of  interpretation  for  national  and 
state  constitutions,  neither  is  to  be  construed  alone,  or  without 
reference  to  the  other.  Each  belongs  to  the  same  system  of 
gOTernment ;  each  is  limited  in  its  power  ;  and  within  the  scope 
of  its  powers,  each  is  supreme.  Each  by  the  theory  of  our  gov- 
ernment is  essential  to  the  existence  and  due  preservation  of  the 
powers  and  obligations  of  the  other.  The  destruction  of  either 
would  be  equally  calamitous,  since  it  would  involve  the  ruin  of 
that  beautiful  fabric  of  balanced  government  which  has  been 
reared  with  so  much  care  and  wisdom,  and  in  which  the  people 
have  reposed  their  confidence,  as  the  truest  safeguard  of  their 
civil,  religious  and  political  liberties,  a 

In  McCulloch  V.  Maryland,  h  Chief  Justice  Marshall  said,  "  The 
government  of  the  Union  is  emphatically  a  government  of  the 
people.  In  form  and  substance  it  emanates  from  them.  Its  powers 
are  granted  by  them,  and  are  to  be  exercised  directly  on  them 
and  for  their  benefit."  "  But  the  question  respecting  the  extent  of 
the  powers,  actually  granted,  is  perpetually  arising,  and  probably 
wiU  continue  to  arise  as  long  as  our  system  shall  exist."  "  In 
discussing  these  questions,  the  conflicting  powers  of  the  general 
and  state  governments  must  be  brought  into  view,  and  the  suprem- 
acy of  their  respective  laws,  when  they  are  in  opposition,  must  be 
settled."  "  If  any  one  j)roposition  could  command  the  universal 
assent  of  mankind,  we  might  expect  it  would  be  this — that  the 
government  of  the  Union,  though  limited  in  its  powers,  is  supreme 
within  its  sphere  of  action.  This  would  seem  to  result  from  its 
nature.  It  is  the  government  of  all ;  its  powers  are  delegated  by 
all ;  it  represents  all ;  and  acts  for  all." 

Judge  Story,  in  Martin  v.  Hunter's  Lessee,  c  says,  "  the  consti- 
tution of  the  United  States  was  ordained  and  established,  not  by 
the  states  in  their  sovereign  capacities,  but  emphatically  as  its 
preamble  declares,  by  the  people  of  the  United  States.  There 
can  be  no  doubt  that  it  was  competent  for  the  people  to  invest 

a  Story  on  Constitution,  §  416,  Federalist,  No.  37. 

6  4  Wheat.  404-5.  c  1  Wheat.  324. 


OF  CONSnrUTION'AL   INTERrRETATION.  661 

the  general  government  Avith  all  tbe  powers  which  they  might 
deem  proper  and  necessary;  to  extend  or  restrain  these  powers 
according  to  their  own  good  pleasure,  and  to  give  them  a  para- 
mount and  supreme  authority.     As  httle  doubt  can  there  be,  that 
the  people  had  the  right  to  prohibit  to  the  states  the  exercise  of 
any  powers  which  were  in  then:  judgment  incompatible  with  the 
objects  of  the  general  compact ;  to  make  the  power  of  the  state 
governments,  in  given  cases,  subordinate  to  those  of  the  nation, 
or  to  reserve  to  themselves  those  sovereign  authorities  which  they 
might  not  choose  to  delegate  to  eitlicr.     The  constitution  was  not 
therefore  necessarily  carved  out  of  the  existing'state  sovereignties, 
nor  a  suiTenderof  powers  already  existing  in  the  state  institutions, 
for  the  powers  of  the  states  depend  upon  their  own  constitutions ; 
and  the  people  of  every  state  had  the  right  to  modify  and  restrain 
them  accordmg  to  their  own  views  of  pohcy  or  prmciple.     On  the 
other  hand  it  is  perfectly  clear,  that  the  sovereign  powers  vested  in 
the  state  governments,  by  their  respective  constitutions,  remained 
unaltered  and  unimpaired,  except  so  far  as  they  were  granted  to 
the  government  of  the  United  States." 

The  government  of  the  United  States  then,  it  is  seen,  is  hmited 
in  its  powers.  It  can  exercise  no  power  not  confeiTcd  by  the  con- 
stitution, either  in  express  terms,  or  by  necessary  impHcation. 
Like  every  other  grant,  this  instrument  is  to  have  reasonable  con- 
straction  according  to  the  import  of  its  terms,  and  words  are  to 
be  taken  in  their  natural  sense,  not  um-easonably  restricted  or 
enlarged. 

The  severest  stniggles,  and  most  earnest  controversies  that  have 
aiisen,  and  which  the  courts  have  been  called  upon  to  settle,  are 
such  as  have  arisen  between  the  advocates  of  the  different  theories 
of  construction ;  between  the  two  extremes ;  the  advocates  of  a 
narrow  and  strict  constmetion,  and  those  of  a  more  enlar<Tcd  and 
liberal  one.  Each  extreme  perhaps  equally  dangerous  and  im- 
practicable. Such  as  contend  for  the  narrowest  constmetion,  that 
of  confining  the  government  to  such  powers  as  the  express  letter 
of  its  language  imports,  would  cripple  its  powers  and  render  it 
unequal  to  the  objects  for  which  it  was  instituted ;  the  other  ex- 
treme would  by  construction,  so  enlarge  and  extend  the  meaning 
of  words  beyond  their  natiu-al  and  obAious  import,  as  to  destroy 


662  OF  COXSTITUTIOXAL  INTEKPEETATION. 

the  force  of  the  instrument,  and  destroy  it  as  a  protective  charter 
for  individual  rights,  individual  security,  and  personal  liberty. 

Chief  Justice  Marshall  doubtless  laid  down  the  true  rule,  when 
he  said,  a  "this  instrument  contains  an  enumeration  of  powers  ex- 
pressly granted  by  the  people  to  their  government."  "  We  know 
of  no  rule  for  construing  the  extent  of  such  powers  other  than  'is 
given  by  the  language  of  the  instniment  which  confers  them,  taken 
iu  connection  with  the  pui-poses  for  which  they  were  conferreil." 
In  another  case  he  said, &  "the  intention  of  the  instrument  must 
prevail ;  this  intention  must  be  collected  from  its  w^ords ;  and  its 
words  are  to  be  understood  in  that  sense  in.  which  they  are  gen- 
erally used  by  those  for  whom  the  instrument  was  intended ;  its 
provisions  are  neither  to  be  restricted  into  insignificance,  nor  ex- 
tended to  objects  not  comprehended  in  them,  nor  contemplated 
by  its  framers." 

By  reasonable  interpretation,  is  meant,  by  way  of  illustration,  that 
in  a  case  where  words  are,  by  reason  of  the  imperfection  of  human 
language,  susceptible  of  two  different  senses,  the  one  strict,  the 
other  more  enlarged ;  that  should  be  adopted  which  is  most  con- 
sonant with  the  apparent  objects  of  the  constitution  ;  that  which 
win  give  it  efficacy,  and  force  as  a  government,  rather  than  that 
which  will  impair  its  operations  and  render  it  useless  ;  so  as  on 
the  one  hand  to  avoid  obvious  mischief,  and  on  the  other  hand  to 
promote  the  pubHc  welfare.  This  for  the  reason,  that  this  con- 
stitution, which  was  founded  by  the  people  for  themselves  and 
their  posterity,  and  for  objects  of  the  most  momentous  nature ; 
for  the  perpetual  Union ;  for  the  establishment  of  justice ;  for  the 
general  welfare ;  and  for  the  perpetuation  of  the  blessings  of 
liberty  ;  requires  that  every  interpretation  of  its  powers  should  have 
a  constant  reference  to  these  objects,  c 

That  such  were  its  objects  appears  from  the  language  of  the  in- 
strument itself ;  and  we  have  the  extrinsic  evidence  in  the  history 
and  spirit  of  its  adoption,  which  appears  from  the  address  of  its 
framers  to  the  people  on  submittiug  it  for  their  approval.  They 
said,  "  In  aU  our  deliberations,  we  kept  steadily  in  view  that  which 
appears  to  us  the  greatest  interest  of  every  true  American — the 

a  Gibbons  v.  Ogden,  9  "Wheat.  1.  6  Ogdeu  v.  Saunders,  12  Wheat,  332. 

c  Story  on  Const.,  §422. 
78 


OF  CONSTITUTIONAL  INTERPRETATION.  C63 

consolidation  of  our  Union ;  in  which  is  involved  our  prosperity 
feUcitj,  safety,  perhaps,  our  national  existence.  The  constituticju 
which  we  now  present,  is  the  result  of  a  spirit  of  amity,  iind  of 
that  mutual  deference  and  concession  which  the  pecuharity  of  our 
political  situation  renders  indispensable."  In  this  spirit  it  was 
adopted  by  the  people. 

It  will  be  seen,  as  was  remarked  by  Justice  Story,  a  "  that  tho 
constitution  unavoidably  deals  in  general  language.  It  did  not 
suit  the  purposes  of  the  people,  in  framing  this  great  charter  of 
our  liberties,  to  provide  for  minute  specifications  of  its  powers,  or 
to  declare  the  means  by  which  those  powers  should  be  can-ied  into 
execution.  It  was  foreseen  that  this  would  be  a  perilous  and  diffi- 
cult, if  not  impracticable  task.  The  iustiiiment  was  not  intended 
merely  for  the  exigencies  of  a  few  years,  but  was  to  endure  through 
a  long  lapse  of  ages,  the  events  of  which  were  locked  up  in  the 
inscrutable  pui-poses  of  Providence.  It  could  not  be  foreseen  what 
new  changes  and  modifications  of  power  might  be  indispensable  to 
effectuate  the  general  objects  of  the  charter,  and  restrictions  and 
specifications  which. at  the  present  might  seem  salutary,  might  in 
the  end  prove  the  overthrow  of  the  system  itself.  Hence  its 
powers  are  expressed  in  general  terms,  leaving  to  the  legislature 
from  time  to  time  to  adopt  its  own  means  to  effectuate  legitimate 
objects,  and  to  mould  and  model  the  exercise  of  its  powers,  as  its 
own  wisdom  and  the  public  interests  should  requii-e." 

Tho  wisdom  of  the  fi-amers  of  this  constitution  and  this  early 
exposition  of  its  true  spirit  and  meaning,  was  demonstrated  in  the 
necessities  of  the  government  in  the  time  of  the  recent  rebellion, 
in  the  enactment  by  congi-ess,  on  the  25th  of  Febniary,  18G2,  of 
an  act  entitled,  "  An  act  to  authorize  the  issue  of  United  States 
notes,  and  for  the  redemption  or  funding  thereof,  and  for  funding 
the  floating  debt  of  the  United  States."  This  act  authorized  the 
secretary  of  the  treasiuy  to  issue  on  tlie  credit  of  the  United  States 
one  hundi-ed  and  fifty  millions  of  the  United  States  notes,  and  de- 
clared that  the  same  should  be  re'ceivable  in  pajTnent  of  all  taxes, 
internal  duties,  excises,  debts  and  demands  against  tho  United 
States  of  every  kind  whatsoever,  except  for  interest  upon  bonds 
and  notes  wliich  shall  be  paid  in  coin,  and  shall  also  be  lawful 
a  Martin  v.  Hunter,  1  Wheat.  30-t. 


QG4:  OF  CONSTITUTIONAL  INTERPEETATION. 

money,  and  a  legal  tender  in  payment  of  all  debts,  public  and  pri- 
vate, within  the  United  States,  except  duties  on  imports  and  in- 
terest, as  aforesaid." 

There  is  in  the  constitution  no  express  grant  of  power  to  enact 
such  a  law.  The  two  theories  of  construction,  to  which  we  have 
referred,  were  never  brought  to  bear  upon  this  great  charter,  with 
greater  force  of  learning  and  power  of  argument  at  the  bar  or  upon 
the  bench,  than  upon  the  constitutional  power  of  the  national 
legislature  to  ena^t  this  statute.  There  was  a  crisis  in  the  affairs 
of  the  national  government.  The  very  existence  of  the  nation,  it 
was  believed,  by  those  who  claimed  the  existence  of  the  power, 
depended  upon  this  question  of  constitutional  construction ;  and 
it  may  be,  the  fearful  hazard  of  a  different  interpretation,  may  un- 
wilhngly  have  influenced,  if  it  did  not  determine  its  decision,  on 
the  gi'ound  that  such  an  interpretation  was  not  only  authorized  by 
the  implied  powers  contained  in  the  instrument  itself,  but  that  an 
emergency  had  arisen  which  demanded  the  exercise  of  the  power 
as  indispensable  to  effectuate  the  great  objects  of  the  creation  of 
the  government  itself.  ^' 

It  is  not  within  the  scope  of  this  work,  and  it  is  not  therefore 
intended  to  argue  as  to  the  right  of  this  question,  or  the  effect  of 
this  statute,  upon  prospective  or  retrospective  demands,  but  to 
present  it,  as  one  of  the  gi'eat  national  questions  of  this  govern- 
ment, which  depended  entu-ely  upon  the  interpretation  of  consti- 
tutional power.  But  it  may  be  asserted  here,  that  whenever  the 
power  has  been  judicially  established,  as  an  existing  power,  it  is 
equally  potent,  if  it  exists  by  implication,  as  if  gi\anted  in  express 
terms. 

Mr.  Justice  Story  was  of  opinion,  that  every  form  of  government 
unavoidably  includes  a  grant  of  some  discretionary  powers,  and  that 
it  would  be  wholly  imbecile  without  thom  ;  that  if  they  could  be 
foreseen  it  would  be  impossible  ab  ante  to  provide  for  them.  He 
says,  "  the  means  must  be  subject  to  perpetual  modification  and 
change  ;  they  must  be  adapted  to  the  existing  manners,  habits, 
and  institutions  of  society  which  are  never  stationary ;  to  the  pres- 
sure of  dangers  or  necessities;  to  the  ends  in  view;  to  general 

*  Since  the  preparation  of  this  chapter  it  has  been  judicially  settled  by  the 
highest  federal  court  that  the  power  to  pass  such  an  act  existed  under  the  implied 
powers  of  the  constitution. 


OF  CONSTITUTIONAL  INTEEPRETATION.  665 

and  permanent  operations,  as  well  as  to  fugitive  and  extraordinary 
emergencies."  "  In  short,  (he  says)  if  the  whole  society  is  not 
to  be  revolutionized  at  every  critical  period,  and  remodeled  in 
eveiy  generation,  there  must  be  left  to  those  who  administer  the 
government;  a  very  large  mass  of  discretionaiy  powers,  capable  of 
greater  or  less  actual  expansion,  according  to  chcumstances,  and 
sufficiently  flexible,  not  to  involve  the  nation  in  utter  destruction 
from  the  rigid  limitations  imposed  upon  it  by  an  improvident 
jealousy."  a 

With  great  diffidence,  and  with  all  our  veneration  for  this  most 
learned  and  profound  commentator,  we  protest  that  we  are  unable 
to  see  how  this  doctrine  can  be  appUed  to  a  limited  constitutional 
government,  of  dilierent  co-equal  departments,  in  which,  the  peo- 
ple have  constructed  the  charter  containing  positive  restrictions 
applicable  as  well  to  the  executive  department  of  the  gsvemment, 
as  to  each  and  every  other  department.  If  the  learned  commen- 
tator means,  that  laws  will  be  required  to  be  enacted  from  time  to 
time  to  meet  the  suggested  emergencies,  and  to  be  remoddled  in 
each  generation  to  conform  them  to  the  habits  and  manners  and 
institutions  of  society,  to  the  advance  and  progress  of  the  age ;  to 
the  march  of  intelligence ;  and  the  development  of  the  arts  and 
sciences,  we  concur.  But  he  is  writing  upon  constitutional  inter- 
pretation. Who  then  is  the  government,  under  our  American  sys- 
tem, that  should  be  entrusted  with  this  flexible  and  discretionary 
poicer  to  do  all  these  things  ?  It  seems  to  assume  that  there  must 
exist  a  power  to  control,  against  the  restrictions  of  the  constitution, 
in  certain  emergencies,  by  those  who  administer  the  government. 
But  we  are  taught  by  the  constitution  itself  that  those  who  ad- 
minister this  government  are  divided  into  three  co-ordinate  de- 
partments ;  each  of  these  can  only  act  within  his  own  limited 
sphere,  and  they  respectively,  are  the  servants  of  the  sovereign 
power,  the  people.  There  is  no  power  above  the  people.  There 
is  no  discretionary  power,  granted  in  the  constitution,  for  either  of 
these  departments,  nor  for  all  of  them  united,  to  exercise  a  discre- 
tionary expansion  and  flexible  power  against  its  rigid  limitations, 
even  though  such  limitations  were  imposed  by  improvident  jeal- 
ousy.   If  abuse  exist  by  reason  of  defects  in  the  constitution, 

a  Story  on  Const,,  §  425. 
84 


666  OF  CONSTITUTIONiVL  KTEEPRETATION. 

present  or  prospective,  tlie  true  source  of  autliority,  the  people, 
have  the  power,  and  doubtless,  the  wisdom  and  patriotism  to 
correct  them ;  and  this,  in  the  American  idea,  is  the  safe  and  only 
depository. 

In  a  chaj)ter  on  constitutional  interpretation,  we  have  deemed 
it  a  duty  to  call  attention  to  this  view,  of  this  distinguished  author 
in  this  particular,  in  order  to  protest  not  only  against  the  error, 
but  also  agamst  what  seems  to  be  the  better  and  sounder  views  of 
the  same  author,  which  are  found  contained  in  another  part  of  the 
same  work,  to  which  we  have  largely  given  credit. 

The  other  extreme  of  these  theories,  that  of  too  enlarged  a  con- 
struction of  constitutional  power ;  of  going  beyond  the  fair  scope 
of  its  terms,  or  necessary  implications,  is  equally  mischievous  and 
dangerous.  Restrictions  may  be  regarded  as  inconvenient,  and 
as  interfering  with  favorite  policies,  but  in.  this  respect  also,  the 
remedy  lies  in  the  power  of  amendment,  rather  than  by  a  hazard- 
ous extention  of  power  by  construction,  which  would  be  in  effect, 
the  making  of  a  constitution,  the  people  have  not  made.  Such 
an  act  of  construction  by  a  court,  would  be  a  usurpation  of  funct- 
ions, not  committed  to  them.  "  The  sound  principle  is  to  declare, 
italex  scripta  est ;  to  follow  and  to  obey." a  "It  should  be,  so 
far  at  least  as  human  infirmity  will  allow,  not  dependent  upon  the 
prejudices  and  excitements  growing  out  of  particular  policies,  nor 
upon  the  passions  of  parties  of  particular  times,  but  the  same 
yesterday,  to  day  and  forever."  b 

Another  division  of  advocates  is  found  upon  constitutional  con- 
struction, viz.,  such  as  claim  to  adhere  to  the  strict  letter,  and 
such  as  claim  that  its  spirit  is  to  be  regarded,  as  sometimes  dif- 
fering from  its  letter.  But  this,  really,  resolves  itseH  into  the  same 
question,  as  that  of  strict  and  liberal  interpretation.  It  is  true, 
the  spirit,  is  to  be  respected  and  taken  as  the  sound  construction, 
but  the  spirit  is  to  be  collected  chiefly  from  the  letter.  No  con- 
struction of  a  given  power  is  to  be  allowed  which  plainly  defeats 
or  impairs  its  avowed  objects.  If  words  are  found  which  are 
fauiy  susceptible  of  two  interpretations  according  to  their  com- 
mon sense  and  use,  the  one  of  which  would  defeat  the  objects  for 
which  the  constitution  was  obviously  made,  and  the  other  would 

a  Story  on  Constitution,  §  426.  b  Ibid. 


OF  CONSTITUTIONAL  INTERPRETATION.  CC7 

preserve  and  promote  those  objects,  tlio  latter  would  be  held  to 
be  the  true  interpretatiou.  Such  a  rule  is  the  plainest  dictate  of 
common  sense,  as  well  as  an  established  rule  of  construction,  a 

In  the  interpretation  of  what  are  called  the  implied  powers  of 
the  constitution,  all  the  ordinary  and  appropriate  means  to  exe- 
cute it,  are  deemed  a  part  of  the  power  itself.  "  This  results  from 
the  very  nature  and  design  of  a  constitution.  In  giving  the  power, 
it  does  not  intend  to  limit  it  to  any  one  mode  of  exercising  it,  ex- 
clusive of  all  others.  It  must  be  obvious  that  the  means  of  carry- 
ing into  effect  the  objects  of  a  power,  may,  nay,  must  be  varied, 
in  order  to  adapt  themselves  to  the  exigencies  of  the  nation  at 
different  times."  6 

It  was  this  view  of  interpretation  of  the  implied  powers  of  the 
constitution,  that  was  adopted  by  the  Court  of  Appeals  of  this 
state  c  in  giving  construction  to  the  act  of  congress  of  February 
25th  1862,  called  the  legal  tender  act. 

Cliief  Justice  Marshall,  whose  views  of  constitutional  inteqjre- 
tation  are  seldom  doubted  as  to  their  soundness,  has  said,  d  "  it 
may  with  great  reason  be  contended  that  a  government  entrusted 
with  such  ample  powers,  on  the  due  execution  of  which,  the  hap- 
piness and  prosperity  of  the  nation  so  ^^ta^y  depends ;  must  be 
entrusted  with  ample  means  for  their  execution.  The  power 
being  given,  it  is  the  interest  of  the  nation  to  facilitate  its  execu- 
tion. It  can  never  be  their  interest,  and  cannot  be  presumed  to 
have  been  their  intention,  to  clog  and  embarrass  its  execution  by 
withholding  the  most  appropriate  means."  "  But  the  constitution 
itself  does  not  profess  to  enumerate  the  means  by  which  the  powers 
it  confers  may  be  executed."  "  The  government  which  has  the 
right  to  do  an  act,  and  has  imposed  on  it  the  duty  of  performing 
that  act,  must,  according  to  the  dictates  of  reason,  be  allowed  to 
select  the  means."  "  But  the  constitution  has  not  left  the  right 
of  congress  to  employ  the  necessary  means  for  the  execution  of 
the  powers  confeiTed  on  the  government,  to  general  reasoning." 
To  its  enumerated  powers  is  added  that  of  making,  "  all  laws 
which  shall  be  necessary  and  proper  for  caiT}'ing  into  execution 

o  Vattel,  B.  2,  Cli.  17,  §§  279-302.  b  Story  on  Const.,  430. 

c  Metropolitan  Bank  v.  Vandyck,  27  N.  Y.  R.  400. 
d  McCuUocli  V.  Maryland,  4  "Wheat.  408-415. 


668  OF  CONSTITUTIONAL  INTEIirRETATION. 

the  foregoing  powers,  and  all  otlier  powers  vested  by  tliis  consti- 
tution iu  the  government  of  the  United  States  or  in  any  depart- 
ment thereof." 

"  The  subject,  (which  he  was  then  considering)  is  the  execution 
of  those  great  powers  on  which  the  welfare  of  a  nation  especially 
depends.  It  must  have  been  the  intention  of  those  who  gave  these 
powers,  to  insure,  as  far  as  human  prudence  could  insure,  their 
beneficial  execution.  This  could  not  be  done  by  confiding  the 
choice  of  means  to  such  narrow  limits  as  not  to  leave  it  in  the 
power  of  congress  to  adopt  any  which  might  be  appropriate,  and 
which  were  conducive  to  the  end.  This  provision  is  made  in  a 
constitution  intended  to  endure  for  ages  to  come,  and,  consequently 
to  be  adopted  to  the  crisis  of  human  affairs.  To  have  prescribed 
the  means  by  which  the  government  should,  in  aU  future  times, 
execute  its  powers,  would  have  been  to  change,  entirely,  the 
character  of  the  instrument,  and  give  it  the  properties  of  a  legal 
code.  It  would  have  been  an  unwise  attempt  to  provide  by  im- 
mutable rules,  for  exigencies  which,  if  foreseen  at  all,  must  have 
been  seen  dimly ;  and  which  can  best  be  provided  for  as  they 
occur.  To  have  declared  that  the  best  means  shall  not  be  used, 
but  those  alone  without  which  the  power  given  would  be  nugatory, 
would  have  been  to  deprive  the  legislature  of  the  capacity  to  avail 
itself  of  experience,  to  exercise  its  reason — and  to  accommodate  its 
legislation  to  circumstances.  If  we  apply  this  principle  of  con- 
struction to  any  of  the  powers  of  the  government  we  shaU  find  it 
so  pernicious  in  its  operation,  that  we  shall  be  compelled  to 
discard  it." 

Should  there  be  any  error  committed  by  congress,  in  the  enact- 
ment of  laws  that  overstep  the  boundaries  of  power,  there  remains 
the  judiciary  whose  province  it  is  to  declare  it,  and  to  afford  the 
proper  relief;  and  behind  this  remains  the  last  resort  of  the  cor- 
recting power,  the  people,  who  may  redress  all  such  excesses  by 
the  legitimate  methods  of  exercising  their  authority. 

Another  question  which  affects  the  interpretation  of  certain 
portions  of  the  federal  constitution  is,  its  connection,  and  possible 
conflict  of  powers  with  the  several  state  constitutions,  which  in 
certain  respects,  and  over  certain  subjects,  possess  exclusive  juris- 
diction, and  over  certain  other  subjects,  possess  concurrent  juris- 


OF  CONSTITUTION.VL  INTER  PIIETATION.  CG9 

diction,  with  tbo  govommcnt  of  tLc  Uuited  States,  This  involves 
some  of  tho  most  dchcato  questions  which  gi'ow  out  of  our  pecu- 
Har  system  of  government.  AVe  do  not  here  propose  to  review  or  dis- 
cuss the  almost  endless  cases  that  have  been  disposed  of,  in  wliich 
these  questions  have  been  raised,  nor  has  such  a  period  of  time 
elapsed,  as  to  incline  us  to  suppose  that  we  approach  as  yet,  tho 
end  of  these  controversies.  A  few  general  principles,  may  appro- 
priately be  rcfeiTed  to. 

Justice  Story  in  an  opinion  a  given  in  the  federal  court  has  said, 
"  The  sovereignty  of  a  state  in  the  exercise  of  its  legislation,  is  not 
to  be  impaired  unless  it  be  clear  that  it  has  transcended  its  legiti- 
mate authority,  nor  ought  any  power  to  be  sought,  much  less  to 
be  adjudged,  in  favor  of  the  United  States,  imless  it  be  clearly 
within  the  reach  of  its  constitutional  charter."  The  constitution, 
of  the  United  States  containing  a  gi-ant  of  powers,  in  many  in- 
stances similar  to  those  abeady  existing  in  the  state  governments, 
and  some  of  these  being  of  vital  importance  also  to  state  authoi-ity 
and  state  legislation ;  it  is  not  to  be  admitted  that  a  mere  gi'ant  of 
such  powers  in  affirmative  terms  to  congress,  does,  per  se,  transfer 
an  exclusive  sovereignty  on  such  subjects  to  the  latter.  On  the 
contrary,  a  reasonable  interpretation  of  that  instrument  necessarily 
loads  to  the  conclusion,  that  the  powers  so  granted  are  never  ex- 
clusive of  similar  powers  existing  in  the  state,  unless,  where  the 
constitution  has  expressly,  in  terms  given,  an  exclusive  power  to 
congress,  or  the  exercise  of  a  hke  power  is  prohibited  to  the  states, 
or  there  is  a  direct  repugnancy,  or  incompatibility  in  the  exercise 
of  it  by  the  states.  "  In  all  other  cases  not  falling  within  tho 
classes  above  mentioned,  it  seems  unquestionable  that  the  states ; 
retain  concurrent  authority  with  congress,  not  only  upon  the  letter 
and  spuit  of  the  eleventh  amendment  of  the  constitution,  but 
upon  the  soundest  principles  of  general  reasoning.  There  is  this 
reseiwe,  however,  that  in  cases  of  concm-rent  authority,  where  the 
laws  of  the  states,  and  of  the  union  are  in  du'ect  and  manifest  colh- 
sion  on  the  same  subject ;  those  of  the  union,  being  "  tho  supreme 
law  of  tho  land,"  are  of  paramount  authority,  and  the  state  laws, 
so  far,  and  so  far  only,  as  such  incompatibility  exists,  must  neces- 
sarily yield." 

a  Houston  v.  Moore,  5  'NVlieat.  48. 


670  OF  CONSTITUTIONAL  INTEKPEETATION. 

An  attempt  to  illustrate  tliese  principles  by  the  almost  number- 
less cases  to  be  found  in  the  books  of  reports,  would  divert  this 
work  from  a  treatise,  to  a  digest,  which  is  not  intended.  A  few 
instances  will  suffice.  This  subject  it  will  be  seen,  affords  an 
ample  field  for  discussion,  and  is  susceptible  of  being  renewed  and 
elaborated  by  the  various  changes  and  modifications  which  arise 
in  practice.  The  system  as  a  whole,  is  complex ;  it  presents  the 
rare,  novel  and  difficult  scheme  of  one  general  government  whose 
action  extends  over  the  whole,  but  which  still  possesses  only  enu- 
merated powers  ;  and  also,  now,  of  at  least  thirty-six  different  state 
governments,  which  retain  and  exercise  many  powers  not  delegated 
to  the  union.     Of  course  contests  respecting  power  must  arise,  a 

"All  experience  shows  that  the  same  measures,  or  measures 
scarcely  distinguishable  from  each  other,  may  flow  from  distinct 
powers  ;  but  this  does  not  prove  that  the  powers  themselves  are 
identical.  Although  the  means  used  in  their  execution  may  some- 
times approach  each  other  so  nearly  as  to  be  confounded,  there 
are  other  situations  in  which  they  are  sufficiently  distinct  to  es- 
tablish their  individuality."  b 

Thus,  an  affirmative  power  in  congress  to  lay  taxes,  &c.,  is  not 
necessarily  incompatible  with  a  like  power  in  the  states.  Both 
may  exist  without  interference  ;  and  if  any  interference  should 
arise  in  a  particular  case,  the  question  of  supremacy  would  turn, 
not  upon  the  nature  of  the  power,  but  upon  supremacy  of  right  in 
the  exercise  of  power  in  that  case.  Unless  from  the  nature  of  the 
power,  or  from  the  obvious  results  of  its  operations,  a  repugnancy 
must  exist,  so  as  to  lead  to  a  necessary  conclusion  that  the  power 
was  intended  to  be .  exclusive,  the  true  rule  of  interpretation  is, 
that  the  power  is  merely  concurrent.  It  would  seem  that  the 
convention  which  formed  the  federal  constitution,  thought,  that 
concurrent  jurisdiction  was  preferable  to  subordination  ;  and  it  is 
evident  that  it  has  at  least  the  merit,  of  reconciling  an  indefinite 
constitutional  power  of  taxation  in  the  federal  government,  with 
an  adequate  and  independent  power  in  the  states  to  provide  for 
their  own  necessities,  c 

The  chances  of  conflict  between  the  laws  of  the  Union  and 

a  Gibbons  v.  Ogden.  9  Wheat.  205.  &  Id. 

c  Federalist  No.  32,  by  Hamilton. 


OF  CONSTITUnON.VL  lYlTllPIlETAnON.  671 

those  of  the  states,  was  doubtless  foreseen  by  the  fraincrs  of  the 
constitution,  and  its  possibility,  nay  even  its  probability,  wisely 
and  expressly  provided  against  in  the  declaration,  that  its  laws,  &.c. 
"  shall  be  the  supremo  law  of  the  laud  ;"  so  that  if  a  state  pass  a 
law  inconsistent  with  the  constitution  of  the  United  States,  it  is  a 
mere  nullity.  Even  if  a  state  pass  a  law  clearly  within  its  ovra 
apparent  constitutional  powers,  if  it  conflict  with  the  exercise  of  a 
power  given  to  congi'ess,  to  the  extent  of  the  interference,  its  ope- 
ration is  suspended  ;  for,  in  a  conflict  of  laws,  the  superior  must 
govern,  and  it  is  the  same,  if  the  conflict  be  with  a  treaty,  a 

This  is  an  axiom  as  well  in  law  as  in  logic,  that  the  controlling 
power  cannot  bo  controlled  by  its  inferior  or  subordhiate.  So  also 
of  these  propositions,  1st,  That  if  power  is  given  to  create  a  thing,  it 
implies  a  power  to  preserve  it.  Secondly,  that  a  power  to  destroy, 
if  wielded  by  a  difl'erent  hand,  is  hostile  to  and  incompatible  with 
the  power  to  create  and  preserve.  Thii-dly,  where  this  repugnancy 
exists,  the  authority  which  is  supreme,  must  control,  and  not  yield 
to  that  over  which  it  is  supreme ;  consequently  the  inferior  power 
becomes  a  nullity,  h 

Another  question  naturally  arises  out  of  the  exercise  of  a  con- 
current  power,  by  both  the  federal  and  the  state  governments.     In 
that  case,  does  the  actual  legislation  by  congi'ess,  after  legislation 
by  the  state  on  the   same   subject,   supersede,   or  does  it  only 
suspend  the  operation  of  the  state  law  over  the  same  subject  mat 
ter  ?    It  is  believed  that  no  answer  can  be  given  to  this  interrog- 
atory which  shall  bo  of  universal  appKcation.     In  a  case  in  th 
federal  court,  c  it  was  equally  divided  on  this  question.     That  wa, 
a  case,  where  congress  under  the  power  to  provide  for  "  organiz- 
ing, arming  and  disciplining  the  militia,"  had  passed  an  act  for 
that  purpose,  and  afterwards  the  state  of  Pennsylvania  passed  an 
act  upon  the  same  subject.     The  state  law  was  held  not  to  be 
repugnant  to  the  constitution  and  laws  of  the  United  States.  Jus- 
tice Washington  delivering  an  able  opinion  to  the  contrary. 

Another  similar  question  arose  under  the  power  ot  congi'ess  to 
establish  uniform  laws  on  the  subject  of  bankruptcies.     Was  this 

a  Gibbons  v.  Ogden,  9  Wheat,  210;  Storj'  on  Constitution,  §  439. 
6  McCuUoch  V.  Marj'land,  4  "WTieat.  42G. 
c  Houston  V.  Mooro,  5  Wheat.  1. 


G72  OF  CONSTITUTIONAL  XNTEKPEETATION. 

power  exclusive,  or  concurrent  with  the  states? a  It  was  held, 
that  the  states  have  authority  to  pass  bankrupt  laws,  provided 
such  law  does  not  impau*  the  obhgation  of  contracts,  and  provided 
there  be  no  act  of  congress  in  force  to  establish  a  uniform  system 
of  banla'uptcy  conflicting  with  such  law.  And  that  whenever 
the  terms  in  which  a  power  is  granted  by  the  constitution  to  con- 
gress, or  whenever  the  nature  of  the  power  itself  requu-es  that  it 
should  be  exercised  exclusively  by  congress,  the  subject  is  as  com- 
pletely taken  away  from  the  state  legislatures  as  if  they  had  been 
expressly  forbidden  to  act  on  it.  They  also  held,  that  the  power 
granted  to  congi'ess  of  estabhshing  uniform  laws  on  the  subject  of 
bankruptcies,  is  not  of  that  description ;  and  that  the  power  of  the 
states  to  pass  bankrupt  laws  is  not  extinguished  by  the  enactment 
of  a  imiform  bankrupt  law  throughout  the  union  by  congress.  It 
is  only  suspended  so  far  as  the  two  laws  conflict. 

This  power  of  congress  may  be  exercised  or  declined,  as  the 
wisdom  of  that  body  shall  decide.  It  is  not  the  existence  of  the 
power,  but  its  exercise,  which  is  incompatible  with  the  exercise  of 
the  same  power  by  the  states.  It  seems,  at  this  day,  to  be  con- 
ceded, that  the  power  of  taxation  given  to  congress,  is  not  exclu- 
sive. So  too,  as  to  the  power  of  congress  to  organize,  discipline, 
and  arm  the  militia,  it  is  held  is  not  exclusive ;  and  is  held  not  to 
be  incompatible  with  the  exercise  of  the  Hke  power  by  the  states, 
and  especially  it  is  held,  that  the  states  possess  this  power  in  the 
absence  of  congressional  legislation.  It  would  then  be  indispen- 
sable to  the  defence  and  security  of  the  states,  h  Again,  congress 
have  power  to  call  forth  the  militia  to  execute  the  laws  of  the 
Union,  to  suppress  insurrections,  and  repel  invasions ;  and  it  is  not 
incompatible  that  the  states  should  possess  the  same  power,  for 
the  same  purposes,  to  call  out  their  own  militia,  c 

Upon  tliis  subject  it  wiU  be  found  that  the  exceptions  to,  and 
modifications  to  general  rules,  become  a  subject  too  prohfic  and 
exhaustless,  to  be  followed  up  in  tliis  work. 

Justice  Story,  in  his  work  on  the  constitution,  has  laid  down  a 
few  general  rules  of  interpretation   of  constitutional  powers,  d 

a  Sturgis  v.  Crowninshield,  4  Wheat.  192-19G,  &c. 

h  Houston  V.  Moore,  5  Wheat.  50,  51,  52. 

c  Id.  d  Story  on  Const.,  §  44:7. 


OF  CONSTITUTIONAL   INTERrRETATlON.  673 

wliicli  we  Ciiimot  omit  to  transcribe,  as  deductions  from  wlmt  pre- 
cedes thoin  in  his  work  : 

"1st.  Wlicnover  the  power  given  to  tiie  general  government 
requires,  that,  to  be  efficacious  and  adequate  to  its  end,  it  should 
be  exclusive,  there  arises  a  just  implication  for  deeming  it  exclu- 
sive. Whether  exercised  or  not,  in  such  case,  it  makes  no  differ- 
ence. 

"  2d.  Whenever  the  power  in  its  own  nature  is  not  incompatible 
with  a  concurrent  power  in  the  states,  either  in  its  nature,  or 
exercise,  there  the  power  belongs  to  the  states. 

"  3d.  But  in  such  case,  the  concurrence  of  the  power,  may  admit 
of  restrictions  or  qualifications  in  its  nature  or  exercise.  In  its 
nature,  when  it  is  capable  from  its  general  character  of  being 
applied  to  objects  or  purposes  which  would  control,  defeat  or 
destroy  the  powers  of  the  general  government.  In  its  exercise, 
when  there  arises  a  conflict  in  the  actual  laws  and  regulations 
made  in  pursuance  of  the  power  by  the  general  and  state  govern- 
ments. In  the  former  case,  there  is  a  qualification  engrafted  upon 
the  generality  of  the  power  excluding  its  application  to  such 
objects  and  purposes.  In  the  latter,  there  is,  (at  least  generaUy,)  a 
qualification,  not  upon  the  power  itself,  but  only  upon  its  exercise, 
to  the  extent  of  the  actual  conflict  in  the  operations  of  each. 

"  4th.  In  cases  of  implied  limitations  or  prohibitions  of  power, 
it  is  not  sufficient  to  show  a  possible,  or  potential  inconvenience. 
There  must  be  a  plain  incompatibility,  a  direct  repugnancy,  or  an 
extreme  practical  inconvenience,  leading  irresistibly  to  the  same 
conclusion. 

"  5th.  If  such  incompatibility,  repugnancy,  or  extreme  inconve- 
nience would  result,  it  is  no  answer  that  in  the  actual  exercise  of 
power,  each  party  may,  if  it  chooses,  avoid  a  positive  interference 
with  the  other.  The  objection  lies  to  the  power  itself,  and  not  to 
the  exercise  of  it.  If  it  exist,  it  may  bo  applied  to  extent  of  con- 
trolling, defeating  or  destroying  the  other.  It  can  never  be  pre- 
sumed that  the  framers  of  the  constitution,  declared  to  be  supreme, 
could  intend  to  put  its  powers  at  hazard,  upon  the  good  vrishos,  or 
good  intentions  or  discretion  of  the  states  in  the  exercise  of  their 
acknowledged  powers. 

"  Gth.  Where  no  such  repugnancy,  incompatibility,  or  extreme 
85 


G7J:  OP  CONSTITUTIONAL  INTEKPEETATION. 

inconvenience  ■svould  result,  then  the  power  in  the  states  is  re- 
strained, not  in  its  nature,  but  in  its  operations  ;  and  then,  only  to 
the  extent  of  the  actual  interference.  In  fact  it  is  obA^ons,  that 
the  same  means  may  often  be  apphed  to  carry  into  operation 
different  powers.  And  a  state  may  use  the  same  means  to  effec- 
tuate an  acknowledged  power  in  itself,  which  congress  may  apply 
for  another  purpose  in  the  acknowledged  exercise  of  a  very  differ- 
ent power.  Congress  may  make  that  a  regulation  of  commerce, 
which  a  state  may  employ  as  a  guard  for  its  internal  policy,  or  to 
preserve  the  pubhc  health  or  peace,  or  to  promote  its  own  pecu- 
liar interests.  These  rules  seem  clearly  deducible  fi'om  the  nature 
of  the  instrument ;  and  they  are  confirmed  by  the  positive  injunc- 
tions of  the  tenth  amendment  of  the  constitution." 

Certain  maxims  and  niles  of  construction  adopted  or  discussed 
by  Judge  Storj^  are  deserving  of  consideration  in  this  chapter, — 
among  which  are,  "  that  a  specification  of  particulars  in  an  instru- . 
ment,  is  the  exclusion  of  generals  ;"  or  in  other  words,  "  the  expres- 
sion of  one  thing,  is  the  exclusion  of  another."  And  Lord  Bacon's 
remark  is  cited  with  approbation,  viz :  "  that  as  exception 
strengthens  the  force  of  a  law  in  cases  not  excepted ;  so  enumera- 
tion weakens  it,  in  cases  not  enumerated."  Safe  as  such  maxims 
are,  as  a  general  rule,  it  still  requires  skill  to  see  that  they  are  not 
appHed  to  the  subversion  of  the  intent  and  object  of  the  instru- 
ment. They  are,  in  particular  cases,  susceptible  of  being  so  im- 
properly applied,  by  the  ingenious  devices  of  legal  advocates. 
Thus,  Judge  Story  says,  a  "  it  has  been  suggested,  that  an  affirm- 
ative proposition  in  a  particular  case,  excludes  the  existence  of 
the  same  thing  in  every  other  case ;  and  a  negative  provision  in  a 
particular  case,  admits  the  existence  of  the  same  thmg  in  every 
other  case.  "  But  these  are  not  found  in  practice  to  be  univer- 
sal rules.  Chief  Justice  Marshall  said,  in  a  case  h  in  the  United 
States  Court,  that  these  principles,  though  generally  correct,  are 
too  broad  for  universal  rules.  It  was  claimed,  that  the  constitu- 
tion having  provided  for  the  trial  by  jury  in  criminal  cases,  there 
was  an  implied  exclusion  of  it  in  civil  cases.  This  rule  could  not 
be  allowed  to  apply  in  such  case.      Judge  Story  says,  c   "  One 

a  Story  on  Const.,  §  448.  c  §  448,  Supra. 

h  Cohens  v.  Virginia,  6  Wheat.  401,  and  Federalist,  No.  83. 


OF  CONSTITUTION.VL  I-VHIRrRETATION'.  075 

might  with  just  as  much  [)ropriety  hold,  that  because  congress 
has  p(nver  to  dcchiro  war,"  but  no  express  power  to  make  peace, 
that  tlie  latter  is  excludcil;  or,  tliat  because  it  is  dcchired  that  no  bill 
of  attainder  or  ex  pjst  fado  shall  be  jiassed  by  congi'ess,  therefore 
'ongress  ])ossess  the  power  and  right  in  all  other  cases,  to  pass  laws* 
^  he  true  rule  is,  in  order  to  ascertain  how  far  our  affirmative  or  neg- 
ative provision,  includes  or  implies  others,  that  we  nuist  look  to  the 
nature  of  the  pro^^siou,  the  subject  matter,  the  objects,  and  the 
scope  of  the  instrument.  These,  and  these  only,  can  properly  de- 
teriuine  the  rule  of  construction.  There  can  be  no  doubt  that  an 
aflinnative  gi-ant  of  powers  in  many  cases,  will  imply  an  exclusion 
of  all  others.  As  for  instance,  the  constitution  declares  that  the 
powers  of  congress  shall  extend  to  certain  enumerated  cases.  This 
specification  of  particulars,  evidently  excludes  all  pretentions  to  a 
general  legislative  authority.  '^Miy  ?  Because  an  affirmative  gi'ant 
of  special  powers  would  be  absurd,  as  well  as  useless-,  if  a  general 
authority  were  intended.  In  relation  then  to  such  a  subject  as  a 
constitution,  the  natural  and  obvious  sense  of  its  provisions,  apart 
from  any  technical  or  artificial  rules,  is  the  true  criterion  of  con- 
struction." 

"  ^Vnothcr  rule  of  intcrin'etation  of  the  constitution  suggested  by 
the  foregoing,  is,  that  the  natural  import  of  a  single  clause,  is  not 
to  be  narrowed  so  as  to  exclude  implied  powers  resulting  from  its 
character,  simply  because  there  is  another  clause  whicli  enumer- 
ates certain  powers,  which  might  otherwise  be  deemed  implied 
powers  within  its  scope ;  for  in  such  cases,  we  are  not,  as  a  matter 
of  course,  to  assume  that  the  affirmative  specification,  excludes  all 
other  implications."  a 

We  cannot  do  better  in  laying  down  niles  that  belong  to  verbal 
criticisms  upon  the  interpretation  of  words  employed  in  the  con- 
stitution, than  to  adopt  those  laid  down  by  Judge  Story. 

"In  the  first  place,  then,  every  word  employed  in  the  constitu- 
tion, is  to  be  expounded  in  its  plain,  obvious,  and  common  sense 
3  leaning,  unless  the  context  furnishes  some  gi-ouud  to  control, 
(qualify  or  enlarge  it.  Constitutions  are  not  designed  for  meta- 
physical or  logical  subtleties ;  for  niceties  of  expression;  for  critical 
propriety  ;  for  elaborate  shades  of  meaning ;  or  for  the  exercise  of 
a  Story  ou  Coust.,  ^  \Vi. 


G7G  OP  C02\STITUTI0NAL  INTERPRETATION. 

pliilosopliical  acuteuoss,  or  judicial  research.  They  are  instruments 
of  a  practical  nature,  founded  on  the  common  business  of  life, 
adopted  to  common  wants,  designed  for  common  use,  and  fitted 
for  common  understandings.  The  people  make  them ;  the  people 
adopt  them  ;  the  people  must  be  supposed  to  read  them  with  the 
help  of  common  sense;  and  cannot  be  presumed  to  admit  in  them, 
any  recondite  meaning,  or  any  extraordinary  gloss."  a 

"  But  in  the  next  place,  words,  from  the  necessary  imperfection 
of  all  human  language,  acquire  different  shades  of  meaning,  each 
of  which  is  equally  appropriate,  and  equally  legitimate ;  each  of 
which  recedes  in  a  wider  or  narrower  degree  from  the  others,  ac- 
cording to  circumstances ;  and  each  of  which,  receives  from  its 
general  use,  some  such  indefiniteness  and  obscurity  as  to  its  exact 
boundaiy  and  extent.  /;  We  are,  indeed,  often  driven  to  multiply 
commentaries,  from  the  vagueness  of  words  in  themselves  ;  and  per- 
haps still  more  often,  from  the  different  manner  in  which  different 
minds  are  accustomed  to  employ  them.  They  expand  or  contract, 
not  only  fi-om  the  conventional  modifications  introduced  by  the 
changes  of  society,  but  also  from  the  more  loose,  or  more  exact 
uses  to  which  men  of  different  talents,  acquirements,  and  tastes, 
from  choice,  or  necessity,  appl}'  them.  No  person  can  fail  to  re- 
mark the  gradual  deflections  in  meaning  of  words,  from  one  age  to 
another ;  and  so  constantly  is  this  process  going  on,  that  the  daily 
language  of  life  in  one  generation,  sometimes  requires  the  aid  of  a 
glossary  in  another.  It  has  been  justly  remarked,  that  no  language 
is  so  copious,  as  to  supply  words  and  phrases  for  every  complex 
idea ;  or  so  correct,  as  not  to  include  many  equivocally  denoting 
different  ideas.  Hence  it  must  happen,  that  however  accurately 
objects  may  be  discriminated  in  themselves,  and  however  accu- 
rately the  discrimination  may  be  considered,  the  definition  of  them 
may  be  rendered  inaccurate,  by  the  inaccuracy  of  the  terms  in 
which  it  is  delivered.  We  must  resort  then  to  the  context,  and 
shape  the  particular  meaning,  so  as  to  make  it  fit  that  of  the  con- 
necting words,  and  agree  with  the  subject  matter."  c 

"  In  the  next  place,  where  technical  words  are  used,  the  technical 
meaning  is  to  be  applied  to  them,  unless  it  is  repelled  by  the  con- 

a  Story  on -Const.   §  451.  c  Story  ou  Const,  §  452. 

h  Vattel,  B.,  2  Ch.  17,  §§  202,  299. 


OP  CONSTITCTIONAI,  INTERPHETATIOX.  C77 

text.  But  tlio  sarao  word  often  p(jssessc.s  a  technical,  and  also  a 
common  sense  meaning.  In  such  a  case,  the  latter  is  io  be  pre- 
ferred, imless  some  attendant  circumstance  jxjints  clearly  t(j  the 
former.  No  one  would  doubt,  where  the  constitution  has  declared 
"that  the  privilege  of  the  writ  of  /micas  corpus  shall  not  bo  sus- 
pended unless  under  peculiar  circunistances,  that  it  refeired,  not 
to  every  sort  of  writ  which  has  acquired  that  name  ;  but  to  that, 
which  has  been  emphatically  so  called,  on  account  of  its  remedial 
power  to  free  a  party  fi'om  arbitrary  imprisonment,  a  So  agam, 
where  it  declares  that  insults  at  co/miion  hnv,  etc.,  the  right  of  trial 
^^y  j^iry  shall  be  preserved,  though  the  phrase  conniton  law  admits 
of  different  meanings,  no  one  can  doubt,  that  it  is  used  in  a  tech- 
nical sense.  TMien,  again,  it  declares  that  congress  shall  have 
power  to  provide  a  navy,  we  readily  comprehend,  that  authority 
is  given  to  construct,  prepare,  or  in  any  other  manner  to  obtain  a 
nav}-.  But  when  congress  is  further  authorized  to  provide  for 
calling  forth  the  militia,  we  perceive  at  once,  that  the  word  "  pro- 
vide" is  used  in  a  somewhat  different  sense."  h 

"  And  this  leads  us  to  remark  in  the  next  place,  that  it  is  by  no 
means  a  correct  rule  of  interpretation,  to  construe  the  same  word 
in  the  same  sense  wherever  it  occurs  in  the  same  instrument.  It 
does  not  follow,  either  logically  or  grammatically,  that  because  a 
word  is  found  in  one  connection  in  the  constitution,  with  a  definite 
sense,  therefore  the  same  sense  is  to  be  adopted  in  every  other 
connection  in  which  it  occurs,  c  This  would  be  to  suppose,  that 
the  framers  weighed  only  the  force  of  single  words,  as  philologists 
or  critics,  and  not  the  whole  clauses  and  objects,  as  statesmen 
and  practical  reasoners.  And  yet  nothing  has  been  more  common, 
than  to  subject  the  constitution  to  this  narrow  and  mischievous 
criticism.  Men  of  ingenious  and  subtle  mmds,  who  seek  for  sym- 
metry and  harmony  in  language,  having  formed  in  the  constitution 
a  word  used  in  some  sense  which  falls  in  their  favorite  theory  of 
intei'prcting  it,  have  made  that  the  standard,  by  which  to  measiu'e 
its  use  in  every  other  part  of  the  instrument.  They  have  thus 
stretched  it,  as  it  were,  on  the  bed  of  Procrustes,  lopping  off  its 
meaning  when  it  seemed  too  large  for  their  purposes,  and  cxteud- 

o  Ex  Parte,  Bolman,  -1  Craucb.  100.  c  Vuttel,  B.  2,  Ch.  17,  §  281. 

h  Story  oa  Const,  §  -153, 


G78  OF   CONSTITUTIONAL  INTEErRETATION. 

ing  it  when  it  seemed  too  short.  They  have  thus  distorted  it  to 
the  most  unnatural  shapes,  and  crippled,  where  they  have  sought 
only  to  adjust  its  proportions  according  to  their  own  opinions. 

It  was  very  justly  observed  by  Mr.  Chief  Justice  Marshall  in 
the  case  of  Cherokee  Nation  v.  Georgia, a  that  "it  has  been  said, 
ihat  the  same  words  have  not  necessarily  the  same  meaning  attached 
to  them,  when  found  in   different  parts  of   the  same  instrument. 
Their  meaning  is  controlled  by  the  context.     This  is  undoubtedly 
true.     In  common  language,  the   same  word  has   different  and 
various  meanuigs,  and  the  peculiar  sense,  in  which  it  is  used  in 
any  sentence,  is  to  be  determined  by  the  context.     A  very  easy 
example  of  this  sort  will  be  found  in  the  use  of  the  word  "  estab- 
lish," wdiich  is  found  in  various  places  in  the  constitution.     Thus, 
in  the  preamble ;  one  object  of  the  constitution  is  avowed  to  be 
"  to  estabhsh  justice  ;"  which  seems  here  to  mean,  to  settle  firmly, 
to  fix  unalterably,  or  rather,  perhaps,  as  justice,  abstractedly  con- 
sidered, must  be  considered  as  forever  fixed  and  unalterable, — to 
dispense  or  administer  justice.     Again,  the  constitution  declares, 
that  congress  shall  have  power,  "  to  establish  a  uniform  rule  of 
naturalization,  and  uniform  laws  on  the  subject  of  bankruptcies," 
where  it  is  manifestly  used  as  equivalent  to  mal'e  or  reform,  and 
not  tojix  or  settle,  unalterably  and  forever.     Again,  "  congress  shall 
have  power  to  establish  post-offices  and  post-roads,"  where  the 
appropriate  sense  would  seem  to  be,  "  to  create,"  to  found,  and 
to  regulate ;  not  so  much  with  a  view  to  permanence  of  foiTQ,  as  to 
convenience  of  action.     Again,  it  is  declared,  "  that  congress  shall 
make  no  law  respecting  an  establishment  of  religion;"  which  seems 
to  proliibit  any  law,  which  shall  recognize,  found,  confirm,  or  pat- 
ronize any  particular  religion,  or  form  of  religion ;  whether  perma- 
nent or  temporary ;  whether  already  existing,  or  to  arise  in  future. 
In  this  clause,  "  establishment,"  seems  equivalent  in  meaning  to 
settlement,  recognition,  or  support.     And  again,  in  the  preamble, 
it  is  said,  "  We  the  people,  &c.,  do  ordain  and  establish  this  con- 
stitution, &c.,"  where  the  most  appropriate  sense  seems. to  be  to 
create,  to  ratify  and  confirm.     So  the  word  "  state"  wdll  be  found 
used  in  the  constitution,  in  all  the  various  senses  to  which  we 
have  before  alluded.     It  sometimes  means,  the  separate  sections 

a  5  Peters,  E.  1,  19. 


OP  CONSTITUTIONAL  INl-ERrilETATION.  (170 

of  territory  occupied  by  the  political  societies  witlihi  ei.vh  ;  some- 
times the  particular  governmeuts  established  by  these  societies  ; 
sometimes  these  societies  as  organized  into  these  particular  gov- 
ernments; and  lastl}'',  sometimes  the  people  composing  these 
pohtical  societies  in  their  highest  sovereign  capacity. 

"  But  the  most  important  rule  in  cases  of  this  nature,  ii,  that  a 
constitution  of  government  does  not,  and  cannot  fiom  its  nature, 
depend  in  any  great  degi-ee  upon  mere  verbal  criticism,  or  upon 
the  import  of  single  words.  Such  criticism  may  not  be  wholly 
without  use  ;  it  may  sometimes  illustrate,  or  unfold  the  appropriate 
sense  ;  but  unless  it  stands  well  with  the  context,  and  subject  mat- 
ter, it  must  yield  to  the  latter.  While  then,  we  may  well  resort  to 
the  meaning  of  single  words  to  assist  our  enquiries,  we  should 
never  forget,  that  it  is  an  insti-ument  of  government  we  are  to  con- 
strue ;  and,  .as  has  already  been  stated,  that  must  be  the  truest 
exposition,  which  best  harmonizes  with  its  design,  its  objects,  and 
its  general  structure."  a 

The  remark  of  Mr.  Burke,  may,  with  a  very  slight  change  of 
phrase,  be  addressed  as  an  admonition  to  all  those,  who  are  called 
upon  to  frame,  or  interpret  a  constitution.  "  Government,  is  a 
practical  thing,  made  for  the  happiness  of  mankind,  and  not  to 
furnish  out  a  spectacle  of  uniformity  to  gi'atify  the  schemes  of 
visionary  politicians.  The  business  of  those  who  are  called  to  ad- 
minister it,  is  to  rule,  and  not  to  wrangle.  It  would  be  a  poor 
compensation,  that  one  had  triumphecl  in  a  dispute,  while  we 
had  lost  an  empire ;  that  we  had  frittered  down  a  power,  and  at 
the  same  time  had  destroyed  the  republic." 

a  Yattel,  B.  2,  Ch.  17,  §§  285-286. 


INDEX. 

EEFEEENCE  IS  TO  THE  PAGES  OF  THIS  "WORK- 


ACCUSATION  and  trial  for  crime,  530-584. 

constitutional  protection  to  the  accused,  530-534. 

enumeration  of  the  constitutional  privileges  to  the  accused,  530-531. 
AFFIRMATIVE  and  negative  statutes,  70-72. 

distinction  between,  70-72,  229,  230. 
AFFIRMATIVE  statute,  what  it  is,  74. 
AFFIRMATIVE  words,  how  construed,  219,  220. 
AMERICA,  new  statutes  in,  43. 
AMERICAN  statutes,  what,  and  how  made,  43. 
AMERICAN  legislatures,  modelled  after  the  English,  43. 

possess  limited  power,  43. 
AMERICAN  rules  of  interpretation,  143-146. 
AUTHENTICATION  of  statutes,  records  and  judgments,  358-362. 
AUTHORITY  and  effect  of  particular  statutes,  151-153. 

B 

BLASPHEMY,  punishable,  559-561. 

what  it  is,  559. 
BOUNDARIES  of  unrestricted  legislation,  304-308. 

in  the  French  and  English  systems,  304-314. 

under  the  American  theory,  314-317. 
BREACHES  of  privilege,  569-658. 

c 

CAPTIONS  of  English  statutes  in  the  reign  of  Henry  III,  41. 
CHANCELLOR  Kent's  definition  of  municipal  law,  37. 
CHARACTER  of  a  nation  found  in  her  written  laws,  38. 
COKE,  Sir  Edward,  opinion  of,  as  to  ancient  statutes,  40. 
CODE  Napoleon,  history  of,  300-303. 

to  what  countries  extended,  303. 
CODIFICATION,  attempts  at,  115-116. 
86 


G82  INDEX. 

CHRISTIANITY,  recognized  in  judicial  decisions  and  in  jnrisprudenco,  555-5G9 
COMITY  of  states  and  between  states,  65,  67,  356,  358. 
COMMON  law,  rules  to  control  construction  of  statutes,  185,  186. 
COMMONS,  house  of,  one  part  of  parliament,  40,  41. 

when  first  acknowledged,  41. 
CONSTITUTION,  British,  what  it  is,  44,  45. 

how  they  change  it,  45. 

of  New  Y^ork,  43. 

of  national  and  state  governments,  45,  352-370. 

American,  what,  45. 

by  whom  made,  45. 

who  has  power  to  make,  45 . 

their  limitations  on  legislation,  62-66. 

in  whom  resides  the  power  to  make,  45. 

laws  made  in  violation  of,  void,  46. 

American,  do  not  themselves,  fix  and  specify  the  limit  of  the  powers  of  the 
several  departments  of  the  government,  339,  340. 

based  on  the  principles  of  the  declaration  of  independence,  346-348. 

of  the  United  States,  by  whom  ratified,  355-357. 
what  it  is,  G54. 
rules  for  its  interpretation,  655-679. 

concurrent  powers  between  national  and  state,  examined,  671-674. 

rules  for  interpreting  state  and  natioual,  alike,  6G0. 

strict  and  liberal  rules,  examined,  661-668. 

whether  there  is  a  discretionary  power  of  construction,  664-666.  '. 

its  conflict  with  state  constitutions,  668-671 . 

maxims  of  construction,  674-676. 
CONSTITUTIONAL  Law,  what,  and  what  otherwise,  362-365. 
who  may  declare  this,  365-370. 

power,  under  American  systems,  330-370. 

distinction  between  English  and  American,  330-370. 

its  limitation  in  America,  330-370. 
CONSTITUTIONAL  Protection,  that  life,  liberty  and  property  be  not  taken  witb 
out  due  process  of  law,  428-443. 

secured  by  national  and  state  constitutions,  428-443. 

to  personal  property,  468-492. 

to  personal  liberty,  493-524. 

the  provisions  enumerated  and  specified,  493-495 . 

most  ample  to  the  citizens  of  the  United  States,  494,  &c. 

government  essential  to  their  protection,  496. 

limitations  of,  496-524.  , 

how  citizens  may  forfeit  these  rights.  496-524.  ^ 

to  the  person  of  the  citizen  other  than  personal  liberty,  525-565.  ' 

to  persons  accused  of  crime,  enumeration  of  rights  and  privileges,  530-534. 
CONSTKUCTION,  of  deeds,  wills  and  written  instruments,   same  as  statutes, 
175-178. 

same  of  constitution,  as  of  statutes,  654. 


INDEX.  G83 

CONSTHUCTIOX,  of  words,  272-27.3. 

of  phrases  and  words,  277-295. 

four  things  to  be  observed  in  construction,  184. 
CREDITOR  and  debtor,  their  relations,  powers,  obligations  and  duties  to  each 

other,  522-524. 
CONTEMPTS,  how  punished,  490-501. 

who  may  punish,  499-501. 
CONTRACTS,  impairing  obligation  of,  47G-479. 
COURIS,  how  they  originated,  340. 

from  whence  they  derive  their  powers,  333-340. 

extent,  limitation  and  regulation  of  their  powers,  341-344. 

distinction  between  their  powers,  and  the  presumptions  arising  from  their 
acts,  342. 
CRUEL  and  unusual  punishments,  constitutional  protection  against,  535. 

D 

DECLARATORY  statutes,  68-70,  221. 

DEEDS,  wills  and  other  writings  construed  by  the  same  rule  as  statutes,  175-178. 
DEFINITION  of  words  and  phrases,  272-274. 
\  DEPARTMENTS  of  government,  how  many,  and  the  powers  of  each,  333-370. 
//DIVINE  authority  of  statutes,  3G. 
DIVISION  of  statutes,  08. 

of  sovereign  power,  82-  90. 
DmSIONS,  co-ordinate,  84-90. 

not  of  equal  influence,  84-90. 

powers  of  each  department,  84-90. 
DIRECTORY  words  in  a  statute,  222-225. 
DIVORCE  cases,  jurisdiction  in,  how  obtained,  481-483. 

when  court  can  decree  the  payment  of  money  in,  486. 
DOUBTFUL  and  obscure  words,  how  construed,  201. 
DOMAT'S  rules  of  interpretiition,  137-142. 
DUE  process  of  law,  what  it  is,  395-400,  468-470,  479-489. 

does  not  include  the  right  to  a  common  law  jury  in  all  cases,  398-400. 

what  it  means,  what  it  secures,  429-432,  441. 

includes  the  right  of  trial  by  jury  in  all  criminal  cases,  432,  442-443. 

its  value  in  civil  cases,  434. 

in  what  cases  the  right  of  trial  by  jury  is  not  secured  by  the  constitution, 
435-438- 


E 

EFFECT  of  the  repeal  of  certain  statutes,  154-160. 
EMINENT  Domain,  right  of,  372-394. 

an  inherent  power  of  sovereignty,  373 . 

not  changed  by  the  national  or  state  constitutions,  374. 


684  INDEX. 

EMINENT  Domain,  existed  before  the  constitution,  374. 

how  it  differs  from  taxation,  375. 

does  not  allow  the  property  of  one  citizen  to  be  taken  and  transferred  to 
another,  375. 

limitation  of  public  right,  376,  &g. 

provision  must  be  made  for  compensation,  378. 

extent  of  power  differs  in  different  states,  380,  331. 

what  maj'  be  taken  under  it,  381,  382. 

by  whom  it  may  be  taken,  382-384. 

who  to  determine  the  necessity,  384-387. 

how  compensation  is  to  be  obtained,  388-392. 

difference  between  taking  directly  by  the  state,  and  by  corporations  ox 
individuals,  391,  392. 

legislature  may  declare  the  extent  of  the  use,  394. 

must  also  be  done  by  due  process  of  law,  395-400. 
ENGLISH  writers,  their  definition  of  statutes,  40-43. 

as  to  the  powers  of  the  king  in  making  laws,  40. 
ENGLISH  jDarliament,  its  powers,  44. 
ENGLISH  statutes,  captions  to,  41. 
ENGLAND,  common  law  of,  43. 
EQUITABLE  construction  of  statutes,  239-244. 
EXCEPTIONS  in  a  statute,  effect  of,  119. 
EX  post  facto  statutes,  167,  168. 
EXCESSIVE  bail,  prohibition  of,  535. 

F 

FATHER  and  child,  their  relations,   their  respective  obligations,  powers  and 

duties,  509-513. 
FINES,  excessive,  prohibited,  535. 
FREE  discussion,  and  petition,  protected,  436,  537. 
FREEDOM  of  speech,  and  of  the  press,  secured  and  protected,  537-553. 

distinction  between  protection  or  liberty,  and  licentiousness,  539-544. 

what  cases  and  what  persons  are  excepted,  and  to  what  extent,  544. 

counsel  and  legislators  liable  when  they  abuse  the  privilege,  546-550. 

editors  of  public  newspapers,  how  far  protected,  550-554. 

G 

GENERAL  and  particular  rules  of  interpretation  of  statutes,  122-146,  147-174. 
GOD,  the  Author  of  the  divine  law,  36. 

municipal  laws  derived  from  His  rules,  36.  ^ 

approach  of  human  laws  to  His  laws,  36. 

His  statutes,  36. 

the  source  of  all  power,  order,  right,  and  authority,  the  one  law-giver,  45 . 
GOVERNMENT,  its  power  to  make  laws,  34. 


INDEX.  G8o 

GO"\TEIlNMENT,  its  object,  35. 

its  power  limited  in  America,  40. 

effect  of  bad,  319-330. 

in  what  consists  its  dangers  and  evils,  32C-330. 

rights  of  citizens  under  it,  345-317. 

the  number  of  states  constituting  the  national,  340. 
GOVERNilENTS,  no  necessary  conflict  between  national  and  state,  3ol-3C8. 

necessary  to  the  protection  of  personal  liberty,  49G. 

and  to  establish  limitations,  49G,  SiC. 
GROTIUS,  his  rules  of  interpretation  of  statutes,  133,  134. 
GUAEDIAN  and  Ward,  their  several  relations,  powers,  obligations  and  duties, 

513-51G. 
GUARAI?TEES,  of  the  citizen  under  constitutions,  344-350. 


H 

HABITUAL  drunkards,  estates  may  be  taken  under  statute  provisions  against 

their  consent,  487,  488. 
HABEAS  Corpus,  what  it  is,  and  for  what  it  may  be  used,  502-524. 

the  limitations  to  its  use,  503-524. 
HUilAN  laws,  what  intended  to  be,  origin  of,  36. 
HUSBAND  and  wife,  their  relations,  reciprocal  powers,  duties  and  obligations, 

505-509. 


IDIOTS,  lunatics  and  habitual  drunkards,  4S7,  488. 

their  estates  may  be  taken  without  their  consent  by  legislative  provisions, 
487,  488. 
IMPAIRING  obligation  of  contracts,  476-478. 
IMPERATH'E  statutes,  222-225. 

IMPRISONMENT  for  debts,  when  creditor  may  imprison  his  debtor,  522-524. 
INTENTION  to  control  construction,  over  the  letter,  175-180. 

to  be  discovered  from  its  words,  182,  183. 
INTERPRETATION,  general  rules  for,  47-52, 
commentary  upon,  47-52. 

good  faith  and  common  sense  required,  47-52. 

liberal  construction  in  favor  of  liberty,   and  strict  construction  for  the 
security  of  the  citizen,  49. 

does  not  belong  to  the  legislature.  111. 

by  whom,  in  absolute  monarchies,  112. 

particular  rules  for,  122-146. 

judicial;  independent  of  written  constitutions,  296-329. 

of  constitutions,  difference  between  state  and  national,  368. 


GSG  INDEX. 


JUDICIAL  power,  v.hen  necessarj',  for  what  purpose  exercised,  65,  66. 

department,  its  value  and  protection,  65,  66,  67. 
JUDICIARY,  their  functions  and  vahie,  duties,  65,  66,  67. 

power  to  declare  statutes  void,  65-67. 

their  dutj'  to  do  so,  when,  365-368. 
JURISPRUDENCE,  history  of,  English,  French,  American,  290-330. 

how  developed,  298* 

and  legislation,  distinction  between,  299. 

power  of,  317-319. 
JURISDICTION,  between  national  and  state  governments,  boundary  line,  &c.,  3G1. 

over  parties,  how  obtained,  480-489. 

how  in  divorce  cases,  481-483. 
JURY  trial,  469,  470. 

what  cases  are  excepted  from  this  right,  470,  471. 


K 


KING  of  England,  his  authority  in  making  laws,  39,  40. 
his  name  in  caption  of  statutes,  41. 


LA"W,  its  origin  and  necessity,  34. 
the  result  of  society,  35. 
the  act  of  government,  35. 
its  supremacy,  35. 
statute,  what,  its  definition,  35. 

void,  if  it  conflict  with  the  constitution,  46, 
respect  due  to  it,  37. 
its  definition,  37. 
its  elements,  38. 
municipal,  its  origin,  36. 

includes  statute  law,  37. 
human,  why  imperfect,  36. 

cannot  abrogate  the  Divine,  37. 
is  composed  of  two  elements,  38. 
its  effect  upon  a  nation,  38. 
common,  what  it  is,  42,  43. 

Enghlish,  adopted  by  the  colonies,  43. 

adopted  by  New  York  constitutions,  43. 
of  domicile  and  of  contrast,  97,  98. 

■who  has  power  to  make  it,  in  civilized  governments,  330-334. 
different  theories  as  to  source  of  power,  330-334. 
American  theory,  330-334. 


INDEX.  C87 

LAW,  necessity  of,  in  organized  society,  335-337. 

agency  of  the  executive  in  the  enactment  of,  338. 

of  the  legislative,  339. 
written,  defines  a  nation's  progress,  38,  39. 
LEGISLATION,  a  necessary  power  of  government,  35. 
its  powers,  C3,  64. 

by  what,  and  how  restricted  in  power,  63,  64. 
its  power  to  enact  laws,  G0-C4. 
a  part  of  jurisprudence,  29G-330. 
LEGISLATIVE  power,  liable  to  abuse,  3C9,  370. 
LEGISLATURE,  cannot  act  judicially,  489,  492. 
LEGISLATIVE  department,  what  it  is,  566. 

their  powers,  566. 
privileges,  what  they  are,  566-653. 

to  whom  they  belong,  5G6-653. 

their  necessity.  56C-()53. 

what  was  originally  claimed  in  the  English  house  of  commons, 

507. 
how  limited  by  modern  statutes,  567. 
diversity  of,  in  American  states,  568,  &c. 
what  is  included  in  them,  369,  &c. 
a  case  of  conflict  between  the  assembly  of  New  York  and  the 

judiciaiy,  572-605. 
report  of  legislative  committee,  573-58L 
defence  of  the  judiciary,  581-605. 

history  of,  in  England,  ancient  and  modern,  with  its  changes 
and  modifications,  605-653. 
LDIITATIONS,  statute  of,  how  pleaded,  147-150. 
LOCAL  acts,  how  interpreted,  271-274. 

LUNATICS,  &c.,  estates  may  be  taken  under  statute  provisions  against  their 
consent,  487,  488. 

M 

M.\NNEE  of  pleading  statutes,  147-150. 
MAHraAGE  contracts,  what,  94-96. 

foreign  law  regulating,  94-96. 
MASTER  and  Apprentice,    their   respective    powers,    duties,    and   obligations, 

516-518. 
M.\STER  and  Servant,  their  powers,  duties,  and  obligations,  518. 
^LAX.L^1S  and  rules  of  ixiterpvetation  of  stati;tes,  121-146. 
MIXED  statutes,  what,  94. 
MUNICIPAL  law,  what,  36,  37. 

N 
N.iTURAL  justice,  statutes  against,  not  void,  81,  82. 


G88  INDEX. 

NEGATIVE  statute,  what  it  is,  74. 

NEWSPAPEKS,  to  what  extent  protected  in  their  publications,  550-554. 

the  progress  in  character  and  usefulness  as  well  as  in  public  demand, 
550-554. 
NEW  statutes,  when  they  become  necessary  in  America,  43. 


o 


OPINIONS,  religious,  protected  and  allowed,  554-565. 
OEIGIN  of  statute  law,  36. 

of  parliaments,  40,  41 . 

of  our  common  law,  43. 

of  constitutions  in  America,  45. 


PAHLIAMENT  of  England,  when  first  recognized,  41 . 

its  authority  and  power,  41. 

its  composition,  40,  41. 

when  the  Commons  became  a  part  of  it,  41. 

their  caption  to  statutes,  41. 
PARTICULAR  construction  of  statutes,  174,  271-274. 
PARTICULAR  and  special  acts,  271-274. 

PETITION  against  grievances,  secured  to  the  citizen,  536,  537. 
PERSONAL  statutes,  what,  90-92. 
PENAL  statute,  definition  of,  74,  75. 

construction  of,  243-250. 
PERMISSIVE  statute,  construction  of,  74,  219,  220. 
PERPETUAL  statute,  construction  of,  74. 
PROSPECTIVE  statute,  construction  of,  74. 
PRECEPTIVE  statute,  construction  of,  74. 
PROHIBITIVE  statute,  construction  of,  74,  IGl,  162. 
POLICE  Power,  444. 

is  sometimes  called  the  law  of  necessity,  444, 

is  in  accordance  with  the  common  law  at  the  time  of  the  adoption  of  the 
constitution,  44G. 

is  the  settled  policy  of  the  state  and  of  organized  society,  44r6-449. 

no  general  statute  regulating  it  in  this  state,  450. 

certain  propositions  in  regard  to  it  adjudged,  452. 

its  justice  discussed,  453-456. 

is  subject  to  legislative  control  in  certain  respects,  457,  461. 

when  the  question  of  commerce  arises,  then  a  nice  question  of  jurisdiction 
arises,  462-4G4. 

it  includes  the  laws  regulating  the  observance  of  the  Sabbath,  464-467. 

and  various  other  subjects  mentioned,  467. 
POLICY  of  statutes,  214,  215. 


INDEX.  689 

POWER  of  legislation,  in  whom,  02. 

.  ftnd  restrictions  of  legislation,  C3,  C4,  Co, 

POWER,  of  States,  upon  whom  it  depends,  352-370. 

prohibited  to  the  States,  348-351. 

by  whom  invested  in  the  constitution,  351-353. 

exercise  of,  whom  it  binds,  3G0-3G3. 

ditiorenco  between  their  constitutions  and  laws,  3G'I:-3GG. 
PllINCIPAL  and  Surety,  their  respective  powers,  obligations,  and  duties,  622. 
PKEA:\IBLE  of  a  statute,  its  force  and  effect,  265-270. 
PROVISOS  in  statutes,  118-120. 

PROCEEDINGS  in  rem,  jurisdiction,  how  obtained,  483-48C. 
PUFFENDORF'S  rules  and  maxims  of  construction,  132,  133. 

Q 

QU.VLITIES  and  incidents  of  statutes,  121,  122. 

QUALIFIED,  construction  of,  174.-185. 

QUARTERING  soldiers  in  private  houses,  constitutional  provision  against,  526. 

B 

REAL  statutes,  what,  92-94. 
REMEDIAL  statute,  what  it  is,  73,  231-236. 
RETROSPECTIVE  statute,  what  it  is,  75. 
REPEAL  of  statutes,  113, 114,  154-160. 
RETROSPECTIVE  statutes,  163-166. 
REASON  of  a  law,  how  obtained,  187,  188. 
RELIGIOUS  opinions,  free  exercise  of,  554-565. 

institutions,  separated  from  civil,  555,  557. 

constitutional,  separation  and  protection,  556,  558. 
RE]MEDIES,  how  they  affect  rights,  470-489. 

how  far  legislation  may  go,  471,  472. 

abolishment  of  imprisonment  only  affects  a  remedy,  472. 

exemption  of  certain  property  from  execution,  473. 

destruction  of  all  remedy  unconstitutional,  474. 

includes  benkrupt  and  insolvent  laws,  474. 

when  the  States  may  and  when  they  may  not  pass  bankrupt  laws,  475-477. 
RIGHTS,  of  life,  liberty  and  property,  how  preserved,  344,  345, 

of  petition,  secured  and  protected,  535,  536. 
RIGHTS  and  immunities  of  the  citizen,  525,  526. 
RULES  and  maxims  of  interpretation,  121-146. 
RUTHERFORD'S  rules,  135,  136. 

s 

SABBATH  day,  christian,  how  recognized  by  statute,  563. 
the  effect  of  its  abolition  in  France,  564. 
87 


G90  INDEX. 

STATUTES,  their  necessity,  their  object,  Zi,  38. 
their  American  definition,  35. 
how  made  in  a  republican  government,  35. 
how  in  a  monarchial,  35. 
their  origin,  and  form  of,  36. 
the  Divine,  36. 

sometimes  called  municipal,  37. 
their  importance  and  character,  38,  39. 
cannot  meet  every  case  of  injustice,  38. 
■when  first  published  in  England,  40,  41. 
English,  by  whom  made,  40,  41 . 

history  of,  and  their  form,  40,  41. 
definition  of,  40-43. 
when  they  became  necessary  in  America,  43, 
interpretation  of,  same  as  in  England,  46. 
ancient,  and  worn  out,  in  England,  become  common  law,  42. 
void  in  America  if  in  conflict  with  the  constitution,  46. 
void  in  England,  if  contrary  to  the  laws  of  God,  or  contrary  to  nature  or 

reason,  75-78. 
and  edicts  of  foreign  countries  must  be  produced  in  evidence  to  prove 

them,  59. 
otherwise  by  parol,  59. 
Revised,  of  New  York,  provide  method  of  proof,  59. 

of  other  States,  the  like  provision,  60. 
the  power  of  enacting  them,  but  a  part  of  the  sovereign  power  in  America, 

61,  62. 
divisions  of,  52-56. 
public  and  private,  52-54. 
difi'erences  between,  56. 
how  divided  by  civilians,  90. 
how  pleaded,  55. 
how  authenticated,  57-60. 
how  certified,  59. 
how  proved,  60. 
by  whom  made,  61,  62. 
restrictions  of  power  in  making,  63,  64. 
the  validity  of,  by  whom  determined,  65-67. 
declaratory,  55,  56. 
declaratory  or  remedial,  58. 
other  divisions,  55. 
proof  of,  57. 

power  of  courts  to  declare  void,  65-67. 
in  the  United  States  void  only  when  they  conflict  with  the  constitution, 

79,  80. 
saving  clauses  in,  117. 

construed  by  the  same  rules  as  wills,  deeds  and  contracts,  175,  178. 
the  intention,  to  prevail  in  their  interpretation,  185,  180. 


INDEX.  691 

STATUTES,  one  part  to  be  construed  by  another,  188. 

so  to  be  construed  that  all  parts  shall  have  effect,  189. 
inpari  matoria,  how  construed,  189,  191. 
its  spirit  to  be  regarded,  202,  203. 
strict  construction  of,  when,  251-259. 
«  exceptions  to  this  rule,  2G0-2G4. 

their  subject-matter  to  be  regarded  in  their  construction,  201,  202. 
special,  how  interpreted,  271-274. 
STATUTE  powers  and  remedies,  275,  276. 
STATUTES,  how  made  in  England,  99. 
how  in  America,  99. 
their  parts,  100. 
time  of  taking  effect,  100,  101 . 
their  title,  and  its  use  and  abuse,  102-105. 
their  preambles,  the  use  and  the  effect  of  them,  107-109. 
their  intent,  to  be  taken  from  their  words,  109,  110. 
and  the  effect  of  words  in  interpretation.  111,  112. 
their  repeal,  and  how  effected,  113,  114. 
defective  language  of,  how  treated,  115,  116. 
saving  clause  in,  117. 
provisos  in,  118-129. 
their  qualities  and  incidents,  121,  122. 
^  maxims  and  rules  for  their  interpretation,  121-146. 

manner  of  pleading  them,  147-150. 
of  limitation  and  of  usury,  how  pleaded,  147-150. 
authority  and  effect  of,  particular,  151-153. 
repeal  of,  154-160. 

effect  of  repeal  upon  particulars,  154-160. 
prohibitory,  effect  of,  161, 162. 
retrospective,  163-166. 
ex  post  f  ado,  167,  168. 
time  of  their  taking  effect,  169-173. 

general,  qualified  and  particular  rules  of  construction,  174. 
how  its  words  are  to  be  regarded,  193. 
how,  particular  words,  how  general,  193,  195. 
how  statutes  of  one  state  are  construed  in  another,  196. 
how,  by  the  federal  courts,  196-198. 
how  to  be  construed,  237,  238. 
penal,  construction  of,  243,  250. 
relating  to  trade  and  commerce,  190. 
J  ambiguous,  how  to  interpret,  208. 

i  ,         no  extra  territorial  authority,  361,  &c. 
laws  define  a  nation's  progress,  38. 
are  made  in  affirmance  of  natural  rights,  39. 
SOYEEEIGN  Power,  what  it  is,  330-338. 
in  whom  vested,  330-338. 


692  INDEX. 

SOYEKEIGN  Power,  opinion  of  English  and  other  wiiters,  330-338. 

its  distribution  into  co-ordinate  departments,  330-349 . 

tlie  indei^endence  of  each  department  of  the  other,  333-340. 

the  functions  of  the  several  departments,  and  their  powers  respeciively, 
333-344. 

exercised  by  its  own  citizens,  343. 

in  American  states  apportioned  to  different  departments,  82-90,  330-370. 
SUPREME  law  of  the  land,  what,  in  certain  cases,  348-370. 

subject  to  what  qualifications,  348-351. 

T 

TAXING  Power,  402. 

the  basis  of  the  right  to  exercise  it,  402. 

to  what  it  extends,  403,  404, 

who  may  direct  its  exercise,  405-408. 

is  not  limited  to  local  districts' for  local  taxes,  406-412. 
•  difference  between  general  taxation  and  local,  412. 

legislative  acts  directing  taxation  for  aid  to  corporations  not  unconstitu- 
tional, 415-418. 

equality  of  taxation,  impossible,  418. 

legislature  possess  all  the  power  in  this  respect  except  when  restrained  by 
the  constitution,  420-427.  I 

other  states  than  New  York  have  a  different  policy,  and  different  constitu- 
tional restrictions,  420,  427. 
TEACHER  and  pupil,  their  relations,  powers  and  duties,  518-522. 
TITLES  to  acts  of  parliament,  41. 
TIME  of  statutes  taking  effect,  1G9,  173. 

u 

USURY,  how  pleaded,  147-150. 
UNREASONABLE  searches  and  seizures,  526-529. 

V 

VATTEL'S  rules  of  construction,  126-132. 

w 

WILLS,  Deeds,  and  other  writings  construed  by  statute  rules,  175-178. 
WITNESSES,  not  incompetent  by  reason  of  their  religious  belief,  5G1. 
form  of  swearing  them,  of  all  religions,  561,  502. 


INDEX.  693 


WOEDS  of  Btatutes,  how  construed,  193-203. 

bow,  when  they  conflict,  208. 

how,  when  repugnant,  210,  212. 

how,  when  doubtful,  213,  214. 

ftffirmativo  and  permissive,  219,  220. 

declaratory,  directory  and  permissive,  221,  22.2. 

directory  and  imperative,  223,  224,  225,  228. 

affirmative  and  negative,  228,  230. 
WOKDS  and  phrases,  particuhir,  how  interpreted  ''74-295. 


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